Negligence Flashcards
What is negligence?
Conduct that falls below the expected behavior that a reasonably prudent person would have exercised under the circumstances
How much damages do you pay for negligence cases as compared to intentional torts?
The same amount
What are the elements of negligence?
Duty
Breach
Actual Causation
Proximate Causation
Damages
What are malfeasance cases?
The bad or improper performance of a legal duty or action (the majority of negligence cases)
What are nonfeasance cases?
Inaction or an omission that causes harm. One is only liable for nonfeasance if he or she owes a duty of care to the victim of harm (less common than malfeasance cases)
What is duty?
If you are acting, you have a duty to act reasonably under the circumstances to avoid or minimize harm to others or yourself
What is an exception to acting but having no duty?
When the only harm you are inflicting on someone is emotional injury, courts will most likely not hold you to a negligence standard because negligent infliction of emotional distress is almost non-existent in courts
Do you generally have a duty to act? What is the policy behind that?
You generally do not have a duty to act or rescue
The policy behind this is that interfering might make the peril worse, and society does not like putting duties on people
What are the four exceptions to not having a duty to act?
1) When the defendant has a special relationship with the victim, they must exercise reasonable care when risks arise in that relationship
2) When the defendant has a special relationship with the perpetrator, they must use reasonable care to prevent harm to third parties
3) If a defendant creates a risk, they have a duty of care. If a defendant injures a plaintiff, even not negligently, they have an affirmative duty to offer assistance to the plaintiff to prevent further injuries
4) Gratuitous service- Once a rescuer gets involved, they assume a duty of care. In general, a defendant cannot leave the victim in a worse position by abandoning rescue. If the defendant is negligent in the process, ordinary negligence rules apply
What is breach?
Not behaving like a reasonable person under the circumstances and creating unreasonable risks of foreseeable harm
What is the goal in determining breach?
The goal is not to reach maximum safety, but reasonable safety
What is step 1 in determining breach?
BPL calculation
What do B, P, and L mean?
B= the burden of avoiding the harm/the cost of taking the precaution
P= probability that harm will be caused without the precaution (multiple P’s for different Ls)
L= harm likely to be caused if if the precaution is not taken (multiple L’s)
What does B<PL mean?
a reasonable person would have taken that precaution. The risk is unreasonable to take without the precaution. Failure to take the precaution is breach
What does B>PL mean?
a reasonable person would not have taken that precaution. Burden of taking the precaution outweighs the risk. Failure to take the precaution is not breach
What are two benefits of BPL analysis?
1) It is an economically efficient way to analyze negligence
2) It identifies the factors we care about in the right relationship
What are two issues to BPL calculation?
1) P and L fluctuate depending on the general risk
2) It is hard to calculate P without knowing a lot of details about something, and it is hard to calculate L when people are so different
What is the restatement 1 for negligence?
Where an act is one in which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligence if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done
What is the restatement 2 for negligence?
A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care is the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risks of harm
What happens if someone had inadequate data upon which to make that assessment and decision before engaging in the conduct?
They would be held to the reasonable person standard to see if a reasonable person would know that information
Is BPL used by judges or juries
BPL is used by judges to determine whether the case should be taken away from the jury, the jury decides whether the defendant acted reasonably under the circumstances
What is the alternate step 1 for determining breach as opposed to a BPL calculation?
the likelihood that the defendant’s conduct will cause harm and the amount of harm it will cause weighed against the usefulness of the conduct and the cost of making it safer, which is more general
What are six critiques to negligence?
1) Negligence is too in determinative for courts to reach consistent outcomes or for actors to predict
2) Insurance blunts the effects of liability
3) Many defendants are judgement proof
4) People don’t always know who to sue
5) The cost of litigation is high
6) The reasonable person standard may just mean the reasonable man
What is the feminine voice’s ethic of care?
a promise that no one should get hurt