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
What is the relationship between B/PL and the reasonable person?
It looks at how a reasonable person would engage in BPL, or how they would act under the circumstances
is the standard for negligence general or specific?
There is a general standard of negligence so that every defendant does not seem reasonable based on a subjective reasonable person standard, but it is important to take facts about the defendant and the circumstances into consideration to show that negligence is fact specific
What do courts look at when determining the reasonable person?
They look at what a reasonable person would have done under the circumstances, what they should know and how they should behave
What is the should have known phenomenon with the reasonable person?
you will be charged with knowledge even if you did not know the knowledge, if a reasonable person would have known that knowledge or taken reasonable steps to find out the necessary information before acting.
Do courts take a person’s below average knowledge and intelligence into consideration? What about a person’s above average knowledge?
It is appropriate to impose liability on persons for the harmful consequences of substandard conduct that is due to their below average knowledge or skills
Courts will take a person’s knowledge that exceed those possessed by most others into consideration, but not a person’s under average knowledge into consideration.
What reasonable person standard are you held to if you hold yourself out as an expert in a certain field?
Even if you don’t have that expertise, but you hold yourself out as having it, and a person relies on that representation, you are held to the skill and knowledge of that field of expertise
What is considered an emergency when determining breach?
a situation not created by the defendant that requires the defendant to act instantaneously to avoid injury or collision (reasonable appearance of imminent peril is usually enough)
The fact that a defendant had to act quickly in an emergency situation is considered part of what when evaluating the reasonable person?
it is considered part of the circumstances
Why is the fact that the defendant acted in an emergency a consideration when courts evaluate the reasonable person?
-Emergencies give people less time to think, making it hard to identify and process options + rank them
What is the majority and miniority rule on jury instructions for emergencies?
Majority rule- Jurors should receive an instruction that they are to take into account that the actor was faced with an emergency
Miniority rule- Jury should be instructed that a defendant must behave reasonably under the circumstances, and lawyers should introduce evidence about the emergency and explain to the jurors that the emergency is part of the overall circumstances they can consider when deciding whether negligence exists
What happens if a defendant fails to reasonably anticipate the emergency?
There will most likely be breach because emergencies are unforeseeable
Is poverty a relevant factor when considering breach?
Poverty seems relevant in some sense to show that the person reasonably tried to make something safe, but at the same time you could say that you trying hard enough isn’t enough to satisfy your duty when you are creating an unsafe product- or you took on a duty to keep us safe and you haven’t been
What are the six things courts consider when making the reasonable person?
1) What should a reasonable person know
2) How does a reasonable person respond in an emergency
3) Does a reasonable person follow custom
4) The physical and mental capacity of the reasonable person
5) The reasonable child
6) The standard of care for a professional
What does custom mean when determining the reasonable person?
a majority of people in this industry have gone through BPL and are using that way of doing things. It is powerful because lots of people have gone through this BPL and say it is reasonable
How relevant is evidence of conformance with custom?
Evidence of conformance with custom is relevant, but not binding on courts when determining negligence. But in most cases reasonable prudence is in fact common prudence
What is the best argument for a defendant in a custom case?
The custom doesnt apply or there is a different custom
How are physical characteristics/disabilities taken into consideration when determining the reasonable person?
The defendant is measured against the reasonably prudent person with his physical characteristics
What kind of physical skills are taken into consideration?
physical disabilities, injuries, illness, advanced physical skills
Is the reasonable person standard for someone with a certain physical characteristic objective or subjective?
It is both. it is a set standard where you measure someone against a reasonable person in their shoes, but it changes based on affliction
What do courts do with unforseeable physical and mental “outbursts”
Courts do not hold people liable for unforeseeable physical injuries but they do for mental ones
How are mental characteristics/disabilities taken into consideration when determining the reasonable person?
Courts do not take mental incapacity or mental illness into account
What is within the category of mental incapacity?
memory, old age, judgment, emotional stability, intelligence etc.
what do courts feel about voluntary intoxication when it comes to the reasonable person?
They will just be held to the reasonable person standard with no special privileges
How are religious beliefs factored into the reasonable person?
factors to be considered when determining negligence, but it is not how would a reasonable person with these religious beliefs act under the circumstances
What is the restatement for the reasonable child?
Unless a child is under the age of 5 or participating in a dangerous activity characteristically undertaken by adults, the standard for a child is that a child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience
When do courts hold children the same as the reasonable adult?
When they are engaging in adult like activities, usually which require a license and impose some sort of risk of danger
What is the standard of care for professionals?
Professionals, no matter whether they have been there two weeks or 30 years, are held to the standard of knowledge and skill normally possessed by members of that profession. This applies to people with under knowledge and extra knowledge.
What is malpractice?
Professional negligence
What two things are different about professional negligence cases?
1)Juries cannot figure out what the correct professional standard of care without expert witnesses (juries most likely do not know how to perform heart surgery, or build a bridge, for example)
2) The judge will not give the jury the reasonable person standard, they will say did they act with the standard of care to this profession
Who decides negligence in medical malpractice cases?
The expert witness
How influential are expert witnesses in….
1) Medical malpractice cases
2) Other professional negligence cases
3) Non professional negligence cases
Controlling
Influential
Expert witnesses cannot testify as to negligence
In medical malpractice cases, the plaintiff cannot recover until when?
Until they can prove that the defendant’s conduct was not consistent with ordinary medical practice
What is negligence per say?
Conduct that is deemed negligent as a matter of law. Rare situations where the jury does not set the standard of care and a judge concludes that B>PL 100% of the time and no reasonable juror could conclude breach
What is the alternative to a BPL analysis?
Some courts use a risk utility analysis, which weighs the usefulness of a product with the danger it imposes to consumers. It is a lighter version of BPL.
In negligence per say, who sets the standard of care/defines what a reasonable person is?
The statute and regs
What is the judge’s role for the jury in a negligence per say case?
They do not set the standard of care, they imports that detail from the statute as the minimum behavior or effort required in the case
What is the jury’s role in a negligence per say case?
They find actual causation and damages
What element of negligence is missing from NPS and why?
Proximate cause because the elements of negligence per say basically are proximate cause
What are the elements of negligence per say?
- The actor violates a statute that is designed to protect against the type of action that the actor’s conduct causes
- The accident victim is within the class of persons the statute is designed to protect
Who decides whether the elements of NPS have been met?
The judge
What is the policy behind negligence per say?
Judges need to follow the standards of care set about by legislatures and agencies in statutes + regulations on specific issues because they have gone through a deliberate process
What is the majority approach for assessing breach for NPS?
violation of a statute is negligence automatically
What are the two minority approaches to assessing breach in NPS?
violation of a statute is evidence of breach, similar to custom
violation of a statute is presumption of a breach that can be rebutted with evidence that a reasonable person would have acted that way under the circumstances
What two types of statutes will not be breach for policy reasons?
Statutes that aren’t the right “fit” or do not set a specific standard of care
Describe licensing statute’s role in NPS
Failure to comply with licensing statutes is not automatically negligence per say. It doesn’t really matter if someone had a license or not, what matters is whether that person exercised the reasonable amount of care for someone in that profession.
- Licensing statutes do not create a standard of care
- The plaintiff can provide evidence that the defendant did not exhibit the required knowledge and skills in order to obtain that license
What are the legitimate excuses from NPS?
. The violation is reasonable (unforeseeable) because of the actor’s incapacity
2. He neither knows nor should know of the occasion for compliance (ex- checking your tail lights, they are on, and they later turn off)
3. He is unable after reasonable diligence to comply
4. He is confronted by an emergency not due to his own misconduct
5. Compliance would involve a greater risk of harm to the actor or others (this is BPL)
Trying hard, forgetting, mental incapacity, etc aren’t valid excuses
What is res ipsa loquitur?
A doctrine that states that the jury is permitted to infer that the defendant was negligent in some unspecified way when the accident causing the plaintiff’s harm/the plaintiff’s injury was probably the result of negligence and the defendant was at least one of the persons who was probably negligent
What is the jury’s role in RIL?
They find out what happened in the facts, whether the conduct was a breach of the reasonable person standard, actual causation, and damages
They are instructed that they may draw an inference of negligence from circumstantial evidence in the absence of direct evidence
What is the judge’s role in RIL?
They decide whether there was a duty of care at all and what that duty is, and they decide whether the accident was probably from negligence or if the defendant was one of the negligent parties and whether to send that to the jury
What is the plaintiff’s burden in res ipsa loquitur cases?
The plaintiff has to persuade the jury by a preponderance of the evidence (more likely than not, greater than 50%), the jury has to believe that the plaintiff’s assertions are more true than not, and the plaintiff must put forth direct or circumstantial evidence for each element of breach in order to avoid summary judgement
What is direct evidence?
first hand evidence of the thing you want to prove
What is circumstantial evidence and how much weight is it given compared to direct evidence?
evidence of one fact offered to establish another fact.
It is treated with the same weight and importance as direct evidence
Direct and circumstantial evidence must point to what?
the specific conduct of the defendant that was allegedly a breach
What is the evidence of negligence or breach in RIL?
the accident itself
What are the old elements for RIL?
(1) the occurrence must be one which would not in the ordinary course of things happen in the absence of negligence
(2) The instrumentality which produces the occurrence must be under the exclusive control and management of the defendant
(3) there must be an absent of explanation by the defendant
* an inference of negligence can be made when evidence exists from which reasonable persons can say that more likely than not that these three elements have been met
What are the modern elements for RIL?
The circumstantial evidence is that the accident more likely than not occurred from negligence and that the defendant was probably one of the people that was negligent.
There has to already be _______ for a jury to infer negligence with RIL
circumstantial evidence
What is the policy behind RIL?
Usually plaintiffs are able to identify defendants’ breach with specificity, but sometimes there is no evidence of what happened and sometimes it is not the plaintiff’s fault, and the courts don’t want to send the plaintiff home with no remedy because they could not spell out in exact detail the defendant’s negligence.
The defendants sometimes know what happened
Gut instinct
What do juries use to find the first element of RIL?
their common knowledge or experience
Who has to prove the second element of RIL?
the defendant
Evidence that one of two actors was not negligent could serve as what?
Evidence that the other one was
What is the main issue/question with RIL?
whether there is sufficient evidence to support the proposition that the negligence that caused the harm points to the defendant.
What are typical fact patterns for res ipsa loquitur?Because the plaintiff cannot argue which person most likely hurt him, the jury is allowed to guess who is most likely responsible. There are problems with this because the jury can pick one of them who didn’t breach and hold them responsible for negligence. Or the jury can decide that all of them committed negligence.
When things go from being idle to exploding, falling, running free, etc with no explanation or medical settings with an unconscious patient and hard to explan injuries
What is the one step further from RIL?
Ybarra, Because the plaintiff cannot argue which person most likely hurt him, the jury is allowed to guess who is most likely responsible. There are problems with this because the jury can pick one of them who didn’t breach and hold them responsible for negligence. Or the jury can decide that all of them committed negligence.
What is the most extreme from Ybarra?
Someberg, The jury found in favor of all of the defendants saying that it was not more likely than not that one of them was responsible, but the jury was instructed that they MUST conclude that one of the defendants was negligent
What should a judge do if RIL is not made out?
Direct a verdict for the defendant
What is actual causation?
the defendant’s breach must be a but for cause of the plaintiff’s harm, meaning the plaintiff’s harm would not have occurred if not for the defendant’s breach (but for)
What is an alternative definition of actual causation that is not really used anymore?
Substantial factor- Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about the harm (doesn’t mean more likely than not)
But for causation must be linked to the defendant’s _______
breach, not whether their general conduct caused or contributed to the plaintiff’s injuries
What is causal link causation and what does it do? What kind of cases is it for?
Where the causal link between the negligence and the harm that occurs is strong, a jury can decide that more probably than not, the injury occurred because of the negligence and not some other cause
It relaxes the standard of actual causation because the plaintiff is not proving “more likely than not” that the defendant’s breach caused his injuries
It is used in cases where it isnt the plaintiff’s fault that they did not know because there was no knowable information to bring forward
What are Calabresi’s causal link factors?
1) Circumstantial evidence exists of a causal link
2) Greater capacity of the defendant than the plaintiff to explain what happened and who is responsible
3) A belief that an erroneous finding of no liability is in the particular circumstances more harmful than an erroneous finding of liability
What is failure to warn causation?
A plaintiff will argue that a defendant’s lack of warning directly caused their harm
What are the three situations of no liability for failure to warn cases
1) There is no duty to warn people of risks when the risks of harm are generally obvious to reasonable people
2) No causation if the risks are not generally obvious but the defendant proves that the plaintiff knew of the danger
3) No liability if the breaching defendant proves that the plaintiff would not have read and heeded a warning had one been given
What is a heeding presumption with failure to warn?
a rebuttable presumption arises that the plaintiff would have heeded the warning had it been given in failure to warn cases involving faulty products (relaxation of the standard)
What is a rebuttable presumption?
a legal assumption that is considered to be true until proven otherwise by the opposing party.
What is the federal rules of evidence 702?
A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise if
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in the issue
(b) The testimony is based on sufficient facts or data
(c) The testimony is a product of reliable principles and methods
(d) The expert has reliably applied the principles and methods to the facts of the case
What is the minority opinion on expert testimony with actual causation? What is its focus? Who does it give deference to?
is the method by which that evidence was obtained generally accepted by experts in the field?
-Gives deference to scientists and its focus is the methodology, not the conclusions they generate
What is the majority opinion on expert testimony with actual causation? What is its focus? Who does it give deference to?
The trial judge must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and can be properly applied to the facts at issue
Many considerations: Whether the theory of technique has been tested, whether it has been subjected to peer review and publication, its known or potential error rate, the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community
It empowers judges to make decisions and its focus is on the methodology and procedures, not the conclusions they generate
What is the con of Daubert?
It favors defendants and not plaintiffs because it usually the plaintiff’s stuff that is the cutting edge new stuff that hasnt gone through all those processes yet
What is loss of chance and when is it used?
doctrine allowing a plaintiff to recover from a defendant whose negligence caused the plaintiff a reduced chance of receiving a better outcome
It is used when causation falls below 50% and is most commonly found in medical malpractice cases
What is the majority approach to loss of chance?
Most states now allow loss-of-chance claims to reach a jury even when the plaintiff cannot prove that the defendant was more likely than not the cause of the plaintiff’s harm
They will usually classify the loss of chance as the harm and damages are reduced by the loss of chance (ex- the harm reduced the loss of chance of life by 30% in a 1million damage, damages would be $300,000)
What are the minority approaches to loss of chance?
1) Courts ask whether the loss of chance was a substantial factor in causing the harm. If so, full damages are awarded.
2) Plaintiffs must satisfy the traditional causation standard (but for causation)
What is a multiple necessary cause case?
Each party’s breach is necessary to cause the harm. One party’s breach alone would not cause the harm.Where separate acts of negligence combine to produce directly a single injury each tort feasor is responsible for the entire result, even though his act alone may not have caused it. (joint and severable liability)
What damages does defendant 1 have to pay in a multiple necessary cause case?
Liable for all the consequences of his negligent act, including the negligent acts of defendant 2
What damages does defendant 2 have to pay in a multiple necessary cause case?
-If the second defendant can separate the amount of damage that he caused, then he is only liable for his harm, otherwise he is liable for the indivisible harm
What is concerted action?
the principle that all those who in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request or who lend aid or encouragement to the wrongdoer or ratify and adopt his acts done for their benefit, are equally liable with him
OR
When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in the concerted activity
When does concerted action arise?
it often arises after the defendant’s move for summary judgment on actual causation and is usually a question for the jury
When do people act in concert?
When they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. This agreement may be expressed or implied.
What is the restatement for encouragement to act in concerted action?
advice or encouragement to act operates as a moral support to a tortfeasor, and if the act encouraged is known to be tortious, it has the same effect upon the liability of the adviser as participation or physical assistance
What do courts typically require for concerted action?
1) A must know that B’s conduct is wronful
2) A’s assistance or encouragement must be substantial
What is joint and several liability?
The plaintiff may sue any one or more of the potential defendants in a single action (joint). Any liable defendant is responsible for the full injury suffered by plaintiff, but the plaintiff is only allowed to one total recovery, so the defendants need to sort that out.
What three situations does joint and several liability arise in?
Indivisible harm
Concerted action
Alternative liability
How are percentages used in joint and several liability?
Juries can be told that all defendants are liable and need percentages of responsibility assigned to them.
What is the old restatement for multiple sufficient causes?
a breach is a legal cause of harm if it is a substantial factor in bringing about the harm
What is the modern restatement for multiple sufficient causes?
If multiple acts occur, each of which would have been a factual cause of the physical harm at the same time in the absence of the other acts, each act is regarded as a factual cause of the harm (true but for causation)
What is the only exception to but for causation being the right way?
Multiple sufficient causes
What two things do you need when analyzing actual causation with multiple defendants?
Multiple necessary causes or multiple sufficient causes
What is alternative liability?
When two or more actions are the only possible causes of a harm, and the plaintiff has introduced evidence that one of the people is responsible, each defendant has the burden of proving that the other defendant is the sole cause of the harm. In the likely event that each defendant cannot do that, they are jointly and severally liable
What do we already know about the defendants in alternative liability?
We already know that all of them breached
What five steps would you go through for actual causation on an exam?
1) But for causation (includes single defendants and multiple necessary causes)
2) Concerted action and loss of chance
3) Multiple sufficient causes
4) Alternative liability
5) The substantial factor definition that courts do not use anymore
What is proximate cause?
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious
Proximate cause is not about _____ or _______, it is about _______
proximity
cause
limiting the defendant’s liability
Proximate cause holds defendants liable for damages associated with what type of harm?
foreseeable harm, even if that harm is bizarre and unlikely to happen
When is proximate cause broken?
Once a situation has been stabilized (people are up on their way and operating normally again) and if there is a superseding cause
What are the jury instructions for proximate cause?
The jury should be instructed that in deciding whether the plaintiff’s harm is within the scope of liability, it should go back to the reasons for finding that the defendant engaged in a breachy conduct. If the harms risked by that tortious conduct include the general sort of harm suffered by the plaintiff, the defendant is subject to liability
How to tell if a consequence is foreseeable?
Go back to the breachy behavior and list the unreasonable risks it imposes on society to see if the defendant’s breach is within those risks
What is the thin skull concept in negligence and where is it used?
Where a particular type of injury to plaintiff is foreseeable, the defendant is liable for the injury sustained even though it is more serious than he or a reasonable person might have anticipated
It is a damages concept or proximate cause counter
When do courts universally recognize thin skulls?
when the physical injury or damage to property triggers unexpected systematic consequences in the victim
When do most courts recognize thin skulls?
Most courts will also allow recover for when the physical injury or harm to property triggers unusual and debilitating psychological responses, You typically don’t need the psychological issue to be preexisting
Are religious beliefs considered under thin skull?
No, they are considered unforeseeable
What is a superseding cause?
an act-person or event- that is so bizarre, unexpected, unusual, etc that it breaks the proximate cause chain and the defendant is not liable for the plaintiff’s injuries
What are the most common superseding causes?
Intentional or criminal acts of third parties
What is the rescuer doctrine?
a rescuer who gets injured responding to the defendant’s breach will be able to recover from the defendant as long as the rescuer’s response is normal
What is considered a normal response while rescuing?
whether the rescuer’s conduct is natural under the circumstances, which might include illogical or frantic acts
Why are defendants liable to rescuers?
Because the normal conduct of a rescuer is foreseeable and within the risks imposed by the breach
What happens if a rescuer has a mistaken belief that someone needs rescuing?
Most courts will still apply the rescue doctrine as long as that belief is reasonable
What does it mean to be attempting to rescue?
undertaking physical activity in a reasonable and prudent attempt to rescue
When are acts of God superseding causes?
When they are unforseeable
What is negligence in the air?
negligence in a vacuum is not negligence at all because it is not putting anyone in danger
What is the majority approach to proximate cause and duty?
you have a duty to the general public, not just to the people that you foresee that you could hurt but also the ones you actually hurt
What is the minority approach to proximate cause and duty?
approaches this in the duty section and says that the risk that we impose on others defines the people to whom we owe a duty (the foreseeable plaintiff)
What are compensatory damages?
-includes lost earnings between the accident and the trial, and lost earning capacity (loss earning into the future), which is very subjective depending on the person
Three types of compensatory damages?
medical expenses, pain and suffering, other non-economic losses like loss of enjoyment
How often may a plaintiff recover damages for a claim?
Once
What are punitive damages?
Damages intended to punish defendants and deter others for willful, reckless, malicious conduct. The plaintiff must prove the defendant’s liability by a preponderance of the evidence
What is the economic loss rule?
-A rule that prohibits tort recovery for economic loss, generally defined as a financial loss resulting from product failure when there is no personal injury or damage to other property
What are affirmative defenses?
The plaintiff alleges that she is harmed by the defendant’s negligence, and defendant argues that plaintiff assumed the risk given plaintiff’s behavior
What are the three types of assumptions of risks?
Expressed, implied, and secondary implied
What is expressed consent?
You expressly assumed the risk, often in writing, for activities that impose risks even with reasonable care
What kind of defense is expressed consent and what are the requirements?
It is a complete defense
The consent must be freely given and the waiver must be specific about the risks or the specific claims waived
What is implied consent?
aka primary assumption of the risk. The plaintiff voluntarily participates in an activity or game with well known risks and by voluntarily engaging in that activity, they are accepting the risks involved in those activities
What kind of defense is implied consent and what are the requirements?
It is a complete defense
The defendant is under no duty to offer the activity and the plaintiff is under no duty to accept the offer and the risks must be inherent in the activity
What is secondary implied consent?
The defendant is engaging in a risky/breachy behavior/ He owns the plaintiff a duty. But the plaintiff is or should be aware of the risks associated with the defendant’s risky behavior, and the plaintiff engages in the activity/conduct anyways
This is comparative negligence because the defendant is saying that the plaintiff has acted unreasonably by engaging in a known risk
What is the minority approach to contributory negligence?
Any responsibility on plaintiff’s part completely bars recovery
What is the somewhat popular approach to comparative negligence?
Pure comparative negligence. An injured party may recover regardless of her degree of fault, but it is reduced by her percentage of fault (whatever plaintiff is not responsible for, they can recover)
What is the most common approach to comparative negligence?
Modified comparative negligence. These states will bar the plaintiff’s recovery completely if plaintiff’s negligence either equals or exceeds that of the defendant
What are the two types of bars for modified comparative negligence?
The plaintiff cannot recover if she is 50% or more responsible (50%)
The plaintiff cannot recover if she is more responsible than the defendant (51% or more)
How does modified comparative negligence work with multiple defendants?
Majority approach- combines the defendants responsibility and compare that to the plaintiff
Minority approach- - bar recovery of the plaintiff if the percentage is greater than either defendant alone
