Negligence Flashcards
Negligence
To Oversimplify, is carelessness. In order to prove right of recovery. 1.) that the defendant owed the plaintiff a duty of due care 2.) that the defendant breached that duty of due care 3.) that the defendant’s breach proximately caused the injury 4.) That the plaintiff suffered injury
Duty
As a general rule, it may be said that we we each owe a duty to every person who we can reasonably foresee might be injured by our carelessness
Other parameters for a careless actor’s duty
a.) the foreseeability of harm to plaintiff, b.) the degree of certainty that the plaintiff suffered injury c.) the closeness of the connection between the defendant’s conduct and the injury suffered d.) the moral blame attached to the defendant’s conduct e.) the policy of preventing future harm f.) the extent to which the burden of the defendant and consequences to the community of imposing a duty to exercise case with resulting liability, and the g.) the availability, cost and prevalence of insurance for the risk involved.
Duty of Landowners
Trespassers may sue only for intentional torts, licensees may also sue for hidden dangers they should have been warned od and invitees may sue under the ordinary rules of negligence
Breach of Duty
To be liable for negligence, a defendant must breach an existing duty. A breach occurs when the defendant fails to exercise the same care as a “reasonable person under similar circumstances” would have exercised. This hypothetical “reasonable person/man” standard can be fairly strict because of a jury’s tendency to use 20/20 hindsight.
Negligence Per Se
That is, if the plaintiff can show that he or she is within the class of persons that the statute was meant to protect and the harm sustained was the type the statute was designed to prevent, the issue of breach of due case is conclusively resolve agaist the defendant.
Proximate Cause
Means direct cause, a direct causal connection between the defendant’s act of carelessness and the plaintiff’s injury.
Legal Cause
Requires: 1.) Causation in fact. In other words, can we say “but for” the defendant’s act the injuries would not have happened? 2.) Reasonable Foreseeability. Factual causation + reasonable foreseeability will establish legal causation.
Substantial Factor
Some courts addressing the “causation in fact” element stress that the defendant’s carelessness must be a substantial factor in bringing about the injury.
Independent Intervening Cause
Emanates from a third party or source to disrupt the causal connection between the defendant’s careless act and the plaintiff’s injury.
“You take your victims as you find them”
You drive negligently, cause a crash. If the other driver had no preexisting condition, he or she wouldn’t have been hurt badly. But he had a bad heart, hemophilia, damaged immune system (from chemotherapy or other reasons), etc. This causes his harm to be much worse than if she had not had such a condition. Are you liable for the greater harm resulting from his having had the condition? Yes.
Injury
Courts have been reluctant to allow recovery for emotional distress on grounds that such injuries are too intangible. Recovery allowed primarily for injury to person or property.
Bystander Recovery
1.) Whether the plaintiff was located near the scened of the accident 2.) Whether the emotional shock resulted from a contemporaneous perception of the accident and 3.) whether the plaintiff and the victim were closely related.
Comparative Fault
In the plaintiff is guilty of fault that contributed to the accident, a defense may exist. Under the old system of Contributory negligence, a plaintiff who was guilty of carelessness that contributed in any material way to the accident was barred from recovery.
