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