Negligence Flashcards
Negligence
A breach of a duty that causes damages. The failure to use ordinary care under the circumstances.
Duty
Obligation to act like the reasonable prudent person in the same or similar circumstances.
Duty w/ physical disabilities
Reasonably prudent man suffering from the same maladies and disabilities under like circumstances.
Cause in fact
factual link between Defendant’s wrongful act and the injury occurred, i.e. “but for.”
Proximate Cause, Foreseeability Test
Established if the injury to the plaintiff and the type, extent, and manner of the plaintiff’s injury were the foreseeable result of the defendant’s negligent conduct.
Duty w/ children
Minors are held to the standard of care that would be expected from a child of like age, intelligence and experience. They may be held to an adult standard when they engage in dangerous adult activity, like driving a car.
Negligence per se
Violation of statute where:
1) plaintiff was in class statute was designed to protect
2) plaintiff suffered injury statute was designed to prevent
Duty w/ mental disabilities
There is no allowance for mental disability in part because of the fear of fraud but also because of difficulty in applying a reduced standard.
Duty to warn
Does not extend to dangers that would be obvious to persons of average intelligence.
Hand Formula
Hand Formula - B < PL P = Probability L = Injury B = Burden If PL>B then Dfd is negligent
Res Ipsa Loquitur
An accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff.
Intervening and Superseding Cause
Where Defendant #1 drives negligently, hits Plaintiff’s car. Defendant #2 hits car while it is on side of the road causing injury. The question is whether D2’s conduct was an intervening superseding cause of the harm which would cut off responsibility to D1. If the intervening cause was foreseeable, it does not cut off responsibility for D1
Reasonable Person
Consider risk created by activity, probability of harm, severity of harm, compare to alternative act, and burden or benefit of alternative act
Martin v. City of New Orleans
Police officer unintentionally shoots plaintiff
Emergency doctrine not applicable because it is within the totality of circumstances
Reasonable person is tailored, where person is a doctor, lawyer, etc
Standard is flexible
Yania v. Bigan
Coal miners, one dared other to jump in, he drowned, other guy did not help
No duty to warn as plaintiff was adult in full mental capacity and should have known risks
No duty to rescue, only if defendant had put plaintiff in position of peril
Farwell v. Keaton
Friend beaten up after men follow women around, friend is left unconscious and dies, defendant did try to help
If you choose to act, must act reasonably
Special relationship existed as they were companions in a social venture
Colman v. Notre Dame
Alzheimer patient
Finding a harm as foreseeable does not by itself impose a legal duty, court must decide whether defendant’s responsibility should extend to such results
No duty of care between care giver and patient, care giver in best position to protect against risks and dangers
Tarasoff v. Regent of UC
Patient kills woman, therapist knows it may happen
If therapist finds patient poses a serious danger of violence, he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger
Costa v. Red Sox
Plaintiff hit by foul ball
No duty to warn against dangers that would be sufficiently obvious to persons of average intelligence
Moe v. Doe
Penile fracture during sex
No consensus of community values or customs defining normal consensual sexual conduct, appropriate standard is to not act in reckless or wanton conduct
Breach of Duty (Restatement 3rd)
In ascertaining whether person’s conduct lacks reasonable care consider reasonable foreseeability of harm (probably and likelihood), foreseeability of severity of harm, burden of precaution to eliminate or reduce risk of harm
Breach (test)
Identify Wrongful Act
How does plaintiff say defendant should have acted
Explain why alternative conduct is path RPPSSC would have taken
TJ Hooper v. Northern Barge
Owner of barges that sank, no radios aboard ship normally but negligent to not have them because it was direct cause of accident, breach of duty was not having radios
There are precautions so imperative that even their universal disregard will not excuse their omission
Custom does not always dictate reasonable conduct, or even universal disregard does not excuse omission
Point-Du-Jour v. American Airlines
Turbulence occurs in the absence of negligence, natural occurrence that cannot be anticipated or avoided
There was an alternative non-negligent explanation so cannot infer act was negligent
Ybarra v. Spangard
Plaintiff had paralyzed arm after surgery
When injured during surgery, all defendants who had control over instruments must meet inference of negligence by explaining their conduct
Andersen v. Minneapolis Roadway
Train engine owned by defendant started fire on plaintiff’s property, 2 other fires were burning in same area, fires happening independent of each other would have start fire
Defendant liable because his fire was material and substantial element in causing damage
Staelens v. Dobert
Accident when truck hit gasoline tanker, three hours later fell over piece of equipment left by state worker
To establish proximate cause, a plaintiff must show that his or her injuries were within the reasonably foreseeable risks of harm created by the defendant’s negligent conduct
Palsgraf v. LI Railroad
Fireworks, scale tips over on old lady
No duty to plaintiff that is not within scope of danger (is not foreseeable)
Cardozo - Defendant breach no duty owed to plaintiff, harm to boys may have been foreseeable but a reasonable person would not have foreseen any risk to plaintiff
Plaintiff was not within the zone of danger
The risk and the plaintiff have to be foreseeable
Hughes v. Lord Advocate -
Eight year old boy knocks over lamp into uncovered manhole and explosion occurs
Do not have to see precise trigger mechanism or way risk came to pass, if it is within the scope of the risk, it is therefore a proximate cause of the harm
Pure Comparative Negligence
Plaintiff can recover percentage of damages even if her own negligence exceeds that of defendant
If plaintiff found 10% responsible, would reduce recovery by 10%
Assumption of Risk
If plaintiff expressly or impliedly consents to confront the harm from a particular risk created by the defendant, the plaintiff is held to have assumed that particular risk created by the defendant and is thus barred from recovery
Implied Assumption of Risk
Test - Plaintiff voluntarily assumes a known risk and appreciates its magnitude
Based on conduct and actions, not reasonableness
