Negligence Flashcards
try not to fail challenge level 100
Basic elements?
Duty, breach, actual cause, proximate cause, damages
Duty I
To act like a reasonable person under the circumstances
Elements of the reasonable person (adult)
A generally careful, level headed person who doesn’t know everything, but does some research. Think common sense.
Circumstances to consider:
- Professional: if actor has special knowledge beyond the average person, they are held to the standard of the average professional.
- If an actor presents themselves as a professional, they are expected to act like one.
- physical disabilities
- if actor is in an emergency situation
Not considered:
- mental disabilities
- a person’s below average knowledge
- poverty
- religious beliefs
Reasonable person standard for children
Restatement: General standard: is child acting like a reasonable child of similar age, experience and mental capacity.
Exceptions:
- children under five are not held liable for negligence.
- children engaged in dangerous and adult activity are held to reasonable person standard. ex: driving
Duty II
A person generally has no duty to act, with a few exceptions.
When person has special relationship to victim: parent/child, employer/employee, teacher/student, landlord/tenant
Or when person has special relationship to perpetrator: parent/child, mental health professional/patient, guard/prisoner
Gratuitous services duty; good samaritan statute
When a rescuer gets involved, they assume a duty of care, generally, to not leave the victim in a worse position by abandoning rescue.
Good samaritan statutes protect person administering emergency care in good faith from liability unless they are willfully/wantonly negligent. (doesn’t apply to doctors).
B/PL
First approach to determining breach. B = burden of avoiding harm, P = probability, L = harm.
If B < PL, reasonable person would take burden to prevent harm. If B > PL, reasonable person would not take the burden.
P and L are categorized generally as low, moderate or high. Think about all the possible Bs, Ps and Ls for every action.
Risk/utility
Discussed after B/PL. Generally, does the risk associated with the action outweigh the utility of that action?
Negligence per se
Applies when (1) there is a statute designed to protect against this kind of accident and (2) the plaintiff is in the class of people the statute intended to protect.
Majority rule: Violation of statute (VOS) = NPS
minority rules: VOS = evidence of breach, VOS = rebuttable presumption of breach
Res Ipsa Loquitor
When the accident is evidence of breach. In these cases, jury can infer breach if:
- accident is more likely than not caused by breach
- defendant was at least one of the people who probably breached
But-for causation
First step in actual causation. Would the harm occur if the breach didn’t happen? If yes, no actual cause. If no, the breach is the actual cause of the harm. There are instances where this doesn’t work.
Causal link
Applies to situations where but-for causation doesn’t work because there is no alternate scenario. When to apply: Is the missing evidence measurable?
- if yes, causation fails. (ex: speed of a car)
- if no, causal link is appropriate (ex: lit stairwell)
How to apply: When breach was wrong because it increases a certain type of accident, and that accident occurs.
Multiple necessary causes: indivisible harm.
When two or more individual acts combine to create the harm, and the harm could not happen without either defendant.
1. Concurrent acts: both negligent combine to make one consequence. Each tortfeasor is jointly and severally liable.
2. Successive acts: the first actor is generally liable for the entire harm, unless actors can prove their individual harm done.
Multiple necessary causes: concerted harm. When do people act in concert?
Those who act in accordance or cooperate to cause harm are jointly and severally liable for entire harm. When do people act in concert:
- A knows (or should’ve known) B’s underlying wrongful conduct, and A’s assistance/encouragement is a substantial factor of B’s conduct
Joint and several liability
Plaintiff can sue any one or more of the potential defendants but doesn’t have to sue more than one. Any liable defendant is responsible for full injury suffered by plaintiff. applies to indivisible harms, concerted actions, and alternative liability
Alternative liability
When one of multiple negligent actors harmed the plaintiff, but we don’t know which one, it is the burden of the defendants to prove who caused the harm.
Multiple sufficient causes
If multiple acts that would alone cause the harm, each act is a factual cause of the harm. Ask: in absence of the other cause, would this act cause the injury?
Failure to warn
If harms are obvious to reasonable people, no duty to warn. If risk is not obvious, but defendant proves plaintiff wouldn’t heed the warning anyway, no cause in fact.
Heeding presumption: rebuttable assumption that had a warning been given, the plaintiff would have heeded it.
Daubert factors
When deciding admissibility of evidence, courts consider:
- Has the method been tested
- Is it peer reviewed or published
- Is the error rate known, are there known controls
- widespread acceptance (Frye)
Empowers courts and often ends up favoring the defendant
Loss of chance
When a defendant decreases the chance of a plaintiff living or recovering: ex 40% to 10%
majority rule: plaintiff recovers 30% of damages
minority rule: if lost chance is substantial factor in harm, defendant is liable for all damages
Proximate cause: majority rule
Limits liability to reasonably foreseeable consequences of an act. Go back to breach- is the harm that happened one of the Ls? liability is limited to harms that result from risks that made the act tortious
Thin skulls and fragile psyches
Defendants are liable to plaintiffs who suffer extra injury due to a preexisting condition. This applies to physical injuries that trigger psychological responses. Does NOT apply to religious beliefs or trauma.
Foreseeable harm in an unusual manner
Actors are still liable for foreseeable harms that materialize in an unusual manner. Ex: flaming rat
Proximate cause: minority rule
Finds proximate cause if harm was unforeseeable but directly linked to the breach. Harm is a natural and probable consequence of the breach. ex- handing a child a gun, who drops it on someones foot and breaks their toe.
Superseding causes
Still just foreseeability: was the intervening act foreseeable? If so, there’s still proximate cause. If not, no proximate cause
NPS in proximate cause
NPS also establishes proximate cause: harm must be the kind that the statute is intended to protect against.
Rescue doctrine
When an actor creates peril (breach), people attempting to rescue should be foreseeable, and actor is liable to rescuer.
Still applies to rescuers with mistaken (but reasonable) belief that someone needs rescuing
Duty minority rule
Some courts consider foreseeability in duty. Analyze briefly if plaintiff was a foreseeable victim that the defendant had a duty to
Compensatory damages
-Lost earnings between accident and trial
-Lost earnings capacity (into the future)
-Medical expenses: past and future- only one recovery
-Non-economic: pain and suffering, loss of enjoyment, loss of consortium
Punitive/exemplary damages
Usually requires proof of liability to exceed preponderance of the evidence- ex: clear and convincing. Applies to willful, malicious or reckless conduct.
Economic loss rule
Plaintiffs cannot recover for economic loss caused by product failure not involving personal injury or property damage. Must go thru warranty law
Assumption of risk types
- Express assumption: signing a waiver that says you understand specific harms and waive right to sue- negates duty.
- Implied (primary) assumption of risk: plaintiff willingly participates in structured game with known risks- negates duty
- Secondary implied assumption of risk: defendant is is engaged in breachy behavior, plaintiff knows (or should know) its risks, and joins in anyway. Defendant still has a duty, but both parties act negligently
Contributory negligence
Plaintiff has a duty to act reasonably to minimize harm to herself. In contributory negligence states, any responsibility on the plaintiff bars her from recovery entirely.
Comparative negligence
Pure comparative negligence: injured party may recover regardless of degree of fault. Recovery is reduced by her percent of responsibility.
Modern comparative negligence: Bars recovery if plaintiff’s responsibility = or > defendant’s.
50% states: equal responsibility bars recovery.
51% states: plaintiff that is more responsible than defendant cannot recover
Comparative negligence- multiple defendants
Ex: plaintiff 40% responsible, defendant 1 30%, defendant 2 30%
Majority rule: plaintiff must be less responsible than the defendants combined responsibility.
Minority: plaintiff is barred from recovery if she is more responsible than one of the defendants.
