Negligence Flashcards
What is Negligence?
The elements or negligence are:
(1) duty,
(2) breach,
(3) actual causation,
(4) proximate causation, and
(5) harm.
What is Negligence Per Se?
If negligence per se, duty and breach are conclusive presumed:
(1) there must be a criminal statue or ordinance (includes traffic or safety infractions);
(2) the plaintiff must be a member of the class of persons protected by the statute; and
(3) the claimed harm must be type of harm protected against.
What is the Duty of Care?
Generally, one owes a duty to act with the ordinary care of a reasonably prudent person.
What is the Professional Standard of Care?
Professionals are required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities, although medical specialists are held to a national standard of care.
What Duty of Care are Children held to?
Children are held to the standard of a child of like age, education, intelligence and experience—a subjective test—unless they are engaged in an adult activity.
What Duty of Care are Common Carriers and Innkeepers held to?
Common carriers and innkeepers are held to a very high degree of care, and are liable for even slight negligence.
What is the Duty of Care during an emergency situation?
In emergencies, one must act as a reasonable person under emergency conditions.
Who is the Duty of Care owed to?
Generally, a duty of care is owed to all foreseeable plaintiffs, the extent of which is determined by the applicable standard of care. Absent a special duty (e.g., landowners, common carriers), under the Cardozo view, a plaintiff is foreseeable where he was located in the zone of danger. Under the Andrews view, any plaintiff is foreseeable.
When has a defendant Breached the Duty of Care?
When a defendant’s conduct falls below the level required by the applicable standard of care owed to a plaintiff, he has breached his duty.
What is Res Ipsa Loqutur?
A plaintiff may use res ipsa loquitur to establish breach. Res ipsa loquitor requires a plaintiff to show: (a) the accident causing the injury is a type that would normally not occur absent negligence; and (b) the negligence is attributable to defendant (because he exclusive controlled the instrumentality).
What is “but for” causation? (Actual Cause)
An act or omission is the actual cause of an injury where the injury would not have occurred but for the act.
What is “substantial factor” causation? (Actual Cause)
Where several causes bring about an injury, and any one alone would have been sufficient, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.
What is Proximate Cause?
In addition to being a cause in fact, the defendant’s conduct must also be the proximate cause of a foreseeable injury.
What is Foreseeability? (Proximate Cause)
Generally, a defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.
When is a result Unforeseeable?
A defendant is liable for all foreseeable harmful results, but not liable for unforeseeable harmful results not within the risk created by the defendant’s negligence.
What Damages are recoverable for a defendant’s negligence?
Damages are not presumed, and nominal damages are not available. Damages typically consist of injury to one’s person or property. Purely economic damages are not available unless there is an accompanying injury to person or property. One may recover punitive damages where the defendant’s conduct was wanton and willful, reckless or malicious.
When is there a Duty to Act?
There is no general duty to act, unless:
(1) one assumes a duty by beginning to act;
(2) one places another in peril;
(3) there is a special relationship between the parties (e.g., parent-child, common carrier, innkeeper, shopkeeper); or
(4) one has the actual ability and authority to control another’s actions and knows the person is likely to commit acts (that would injure another person) requiring exercise of such control.
Recite the Prima Facie case for Negligence
Negligence
Prima Facie Case: Negligence involves duty, breach, actual and proximate causation, and harm
Recite the Rule Statements For Each Type of Duty
Duty
1. Generally: Generally, a duty of care is owed to all foreseeable plaintiffs, the extent of which is determined by the applicable standard of care
Cardozo: Anyone in zone of danger
Andrews: Any plaintiff
2. Negligence Per Se: Duty and breach conclusively presumed if defendant violated criminal statute/ordinance, plaintiff is a member of class protected, and suffered type of harm protected
Excused: Breach excused where compliance would cause more danger, or was beyond defendant’s control
3. Default Duty: One owes a duty to act with ordinary care of reasonably prudent person
4. Professionals: Must possess knowledge and skill of member of profession or occupation in good standing in similar communities, but medical specialists held to national standard of care
5. Children: Held to standard of child of like age, education, intelligence and experience unless engaged in adult activity
6. Common Carriers/Innkeepers: Held to a very high degree of care, liable for even the slightest negligence
7. Emergencies: One must act as a reasonable person under emergency conditions
Recite the Rule Statements for Each Type of Actual Causation
Actual Causation
But For: Injury would not have occurred but for the act
Substantial Factor: Where several causes bring about an injury and any of them alone would have been sufficient, defendant’s conduct is cause in fact if it was a substantial factor
Recite the Rule Statement for Proximate Cause
- Proximate: Defendant’s conduct must also be proximate cause of a foreseeable injury. Defendant generally liable for all harmful results that are normal incidents of and within the increased risk caused by his acts.
