Negligence 2nd Deck B4 Final

Question 1

Negligence - Elements

Answer 1

1. Duty (yes/no)
2. Standard of Care
3. Breach
4. Causation
   ○ Factual causation
   ○ Proximate cause
5. Damages

Question 2

Negligence per se

Answer 2

“Borrowing a Statute”
an act is considered negligent because it violates a statute or regulation
1. Is the person in the protected ?
2. Is the Harm caused, the harm that statute was meant to prevent?

Question 3

Res Ispa Loquitur

RIL

Answer 3

P can create a rebuttable presumption of negligence

• the harm would not ordinarily have occurred without negligence
• most likely that the negligence came from the def, no other plausible expliations

(old rule - that the object that caused the harm was under the defendant’s control)

Question 4

Cardozo view of duty

Answer 4

(majority) the duty of care runs only to FORESEEABLE PLAINTIFFS in zone of danger

Question 5

Andrews view of duty

Answer 5

(minority) a duty to one is a duty to ALL / SOCIETY

Question 6

Standard of care

Answer 6

the general duty is that we must all act as would an ordinary, reasonable, prudent person under all the circumstances

Question 7

Factual Causation - But-for test

Answer 7

D conduct is an actual cause of P’s injury when “BUT FOR” his conduct, the injury would not have occurred.

Question 8

Factual Causation - Substantial factor test

Answer 8

If EITHER PARTY BY THEMSELVES is a but-for causation, they would BOTH be liable

Question 9

Factual Causation - Concurrent causes test

Answer 9

MULTIPLE ACTS COMBINED to cause an injury and NEITHER alone would have been sufficient to cause the injury

Question 10

Legal Cause

Answer 10

P’s injury was a reasonably foreseeable result of defendant’s breach of duty

Question 11

Legal Intervening cause

Answer 11

will defeat proximate cause if it “breaks the causal chain” between the defendant’s conduct and the plaintiff’s injury

Question 12

Defenses - Assumption of the Risk

Answer 12

Affirmative defense to negligence that allows a defendant to avoid liability if the plaintiff KNEW about the risk of harm AND PROCEEDED anyway. (KNOWING AND VOLUNTARY)

Question 13

Defenses - Contributory Negligence

Answer 13

All or nothing doctrine; P recovers either 0% or 100%

P was negligent in causing his own harm

Question 14

Defenses - Comparative Negligence

Answer 14

1) PURE: P recovery is reduced by his own % allocated of fault
2) < 50% : If less than the Def negligence can recover %
3) 50% : if P’s own percentage fault is = or less can recover %

Question 15

Defenses - 3 + subsets = 6 total

Answer 15

Assumption of Risk - Primary , Secondary
Contributory Negligence
Comparative Negligence - pure , 50% , <50%

Question 16

Legal Cause

Answer 16

Generally, the harm was a FORESEEABLE result of the conduct and the harm was not brought about by an extraordinary or unforeseeable sequence of events