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torts > Negligence > Flashcards

Negligence Flashcards

1
Q

What is negligence?

A

Conduct that falls bellow the standard of care that a reasonably prudent person would have exercised under like circumstances, and thus, places unreasonable risk upon another

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2
Q

What are the elements of negligence?

A
  1. Duty
  2. Breach
  3. Causation
  4. Damages
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3
Q

What is the element of duty?

A

The legal duty to use reasonable standard of care (to avoid unreasonable risk to others)

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4
Q

Does one have the duty to take affirmative action?

A

NO - except in recognized special relationships

But, if a doc is not within work hrs. then does not have to take affirmative action to help

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5
Q

What is breach?

A

Failure to meet the standard of care. Breach is the heart of negligence.

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6
Q

What does P need to show that D breached duty?

A

P needs evidence that D either:

(a) Created dangerous condition OR
(b) Noticed dangerous condition and didn’t remedy it
- actual notice: seeing something and not doing
- constructive notice: presumed noticed based on existing facts/circumstances

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7
Q

What is causation?

A

A reasonably close causal relationship between conduct and injury

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8
Q

What are the two elements of causation?

A
  1. Causation in fact (actual cause): a “but for” cause - injury wouldn’t have occurred w/out it
  2. Proximate cause: “sufficiently close” causal connection b/t D’s negligence and P’s harm
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9
Q

What are the damages for negligence?

A

Actual damages

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10
Q

What must P generally show concerning D’s conduct?

A

That D’s conduct imposed “unreasonable risk of harm”

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11
Q

What is the balancing test for “unreasonable risk”?

A

Risk is unreasonable and act is negligent if the risk OUTWEIGHS what the law regards at the utility of the act

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12
Q

What kind of role do warnings have in negligence?

A

Risk of conduct can be reduced by warnings, but failure to warn can itself be negligent

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13
Q

Who is the reasonable person?

A

Not an extraordinary careful person who uses ordinary prudence

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14
Q

Standard of care if physically disabled?

A

Held to same standard of person with that specific disability

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15
Q

Standard of care if intoxicated?

A

Held to same standard of a reasonably sober person

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16
Q

Standard of care if child?

A

Held to same standard of child of same age and experience, BUT if engaged in dangerous adult activity, THEN held to same standard of care of an adult

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17
Q

Standard of care during emergency?

A

Held to same standard of someone who faced same emergency

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18
Q

What are the elements of an emergency?

A
  1. Unforeseen
  2. Sudden
  3. Unexpected
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19
Q

Do parents have duty to exercise reasonable care to supervise conduct of their children?

A

YES - parents are directly liable for any unreasonable risk or harm caused by their children

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20
Q

What is malpractice?

A

Negligence by professional–where act falls below the standard of care that an ordinary reasonable profession would have exercised under like circumstances

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21
Q

What is Negligence Per Se?

A

Under NPS doctrine, when D’s negligent conduct violates a statute, this conclusively establishes negligence

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22
Q

When does Negligence Per Se apply?

A
  1. Injured P must be a member of the class that statute was made to protect
  2. P’s injury is an injury that statute meant to protect against
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23
Q

What is the majority and minority ruling of NPS?

A

Majority - NPS is NPS (jury must find that there was duty and breach of statute)
Minority - violation is only evidence of negligence, which jury may accept or reject

24
Q

What is Res Ipsa Loquitur?

A

“The thing speaks for itself”

Under doctrine, the very fact that accident happened leads to the inference that negligence caused it

25
Q

What are the different rulings for Res Ipsa Loquitur?

A

Majority: warrants the inference of negligence
Middle: rebuttable presumption of negligence
Minority: once P shows RIL, burden of proof shifts to D

26
Q

What are the requirements for Res Ipsa Loquiter?

A
  1. There’s no direct evidence of D’s conduct
  2. Harm doesn’t normally happen except via negligence
  3. Negligence was prob by D
  4. P didn’t cause the negligence
27
Q

What is needed for the jury for a malpractice case?

A

Expert testimony to explain what the standard of care is

Jury must evaluate whether P/D complied to LOCAL STATUTES in regards to the malpractice

28
Q

What must P show for causation?

A
  1. Cause in fact (actual cause)

2. Proximate cause

29
Q

What is cause in fact (actual cause)?

A

The negligence was - a substantial factor in resulting the harm

  1. “but for” test - if D had not acted negligently, P’s injuries would not have resulted
  2. greatly multiply test
  3. statistical test
30
Q

What is joint and several liability?

A

Liability can be apportioned among two+ parties or just one, such that each is responsible for entire damages

31
Q

What is proximate cause?

A

D is liable only for reasonably foreseeable consequences

32
Q

Which factors make it likely that D’s breach of duty was a proximate cause of P’s injury?

A

The injury was near in location, time, and was foreseeable from the breach

33
Q

What kind of tests do courts use to determine whether there was proximate cause?

A

P would want to use Palgraph dissent’s broad test:
There is proximate cause not only to the the foreseeable P, but as long as the chain of causation remains unbroken (ends where injury becomes too remote in time and distance)

D would want to use Palgraph’s majority test:
There is proximate cause only to foreseeable P

34
Q

What is an intervening cause?

A

A force that contributes to D’s negligence (after D’s negligence) in producing P’s injury

35
Q

What is an foreseeable intervening cause?

A

D serves too much soju to X while knowing he has to drive. X runs over P. D is not absolved from liability

X: the foreseeable intervening cause

36
Q

What are damages?

A

$ awarded to an injured party as compensation for harm or loss

37
Q

What are nominal damages?

A

Small sum of $ awarded to P to remind D not re-commit tortious act

38
Q

What are actual damages?

A

The closest financial equivalent of the harm or loss suffered by P to:

  • Restore P to pre-injury status
  • Make P whole again
39
Q

What are punitive damages?

A

Additional sum of $, above the compensation of P’s harm or loss, awarded to P to:

  • Punish D (for outrageous conduct)
  • Make an example of D
  • Deter D and others from doing similar tortious act
40
Q

What are special damages?

A

Objective and economic damages:

  • lost earnings
  • medical expenses
  • other quantifiable expenses out from P’s pocket
41
Q

What are general damages?

A

More subjective and non-economic:

  • pain and suffering
  • loss of function or appearance
  • loss of enjoyment of life
  • loss of companionship
42
Q

Can P recover damages again from D after lawsuit?

A

ALL damages (past, present, future) must be included in one lump sum award on verdict day of single lawsuit!

The one lump sum is in accordance to its PRESENT VALUE

43
Q

What is required for negligence?

A

Actual injury

44
Q

Can X’s spouse or children recover for X’s injuries?

A

YES - possible in most states for:

  • loss of companionship
  • wrongful death
  • economic support
  • etc.
45
Q

What is contributory negligence?

A

A negligence defense.

If P’s own negligence proximately caused P’s injuries, P is totally barred from recovery from D

46
Q

What is the “last clear chance” doctrine for contributory negligence?

A

Limit on the contributory negligence defense.

Just before the accident, if D had “last clear chance” to prevent harm, and P did not have such opportunity, then effect of contributory negligence is wiped out!

47
Q

What is comparative negligence?

A

A negligence defense.

Liability for negligence is divided between P and D in proportion to their relative degrees of fault

48
Q

What are the four types of comparative negligence?

A
  1. Pure (13 states)
    P’s recovery is reduced by P’s percentage of fault
  2. Modified 1: “not as great as” (about dozen states)
    P’s recovery is reduced by P’s percentage of fault as long as P’s fault is “not as great as” D’s
  3. Modified 2: “not greater than” (about 20 states - IL & NV!)
    P’s recovery is reduced by P’s percentage of fault as long as P’s fault is “not greater than” D’s
  4. Slight (only S. Dakota)
    - apportions damages as long as P’s fault was “slight” in compared to D’s
49
Q

What is assumption of risk?

A

A negligence defense.

If P voluntarily consented to take chance of harm, he is considered to have “assumption of risk”

Two types of AoR:
1. Express
P explicitly agreed (verbally or written) with D of risk
2. Implicit
P’s conduct implied his assumption of risk

50
Q

What is the statute of limitations and what role does it play in negligence?

A

The SoL limits the time during which a CoA can be brought.

SoL is a negligence defense.

Discovery rule:
If P doesn’t discover injury until long after D’s negligent act, the SoL may have started to run at the time of the act, or may start to run once P’s discovers (or have ought to discover) the injury

51
Q

What are immunities?

A

A negligence defense.

Immunities apply when D’s status immunizes him/her of liability b/c of certain relationship with P

  1. Family immunity
    (a) inter-spousal immunity
    * Abolished in over half of the states
    (b) parent-child immunity
    * Abolished in about dozen states
  2. Charitable immunity
    Charity, educational, religious orgs.
    *Abolished in more than 30 states & no more for hospitals!
  3. Governmental immunity
    (a) federal gov: can be sued for certain types of torts under Federal Torts Claims Act
    (b) state and local gov: *immunity abolished in majority of states
52
Q

What is the wrongful death statute? And what can P recover?

A

Under the wrongful death statute, a decedent’s survivors can bring a lawsuit to recover losses caused by a tortious injury that resulted in decedent’s death.

P can recover for:

  • lost wages
  • job benefits
  • funeral fees
  • loss of companionship/consortium
  • child care fees
53
Q

What is vicarious liability?

A

Secondary liability imposed on supervisor for subordinate’s acts

54
Q

What is respondeat superior?

A

“let the superior respond”

An employer will be liable for employee’s tortious acts committed w/in scope of employment!

55
Q

Which relationships fall under the doctrine of respondeat superior?

A

principal-agent
master-servant
employer-employee

56
Q

What is a joint enterprise?

A

Like a partnership, but it’s for a short and specific purpose (i.e. trip)

Four elements:

  1. Agreement
  2. Common purpose
  3. Common financial interest in purpose
  4. Equal voice right in enterprise
57
Q

What is the general rule for bailments in determining vicarious liability?

A

A bailment does NOT make bailor vicariously liable for bailee’s negligence, UNLESS there’s a consent statute!

i.e. CHECK STATE LAW if there’s:
- automobile consent statute
car owner liable if X used car w/ permission
- family purpose doctrine
car owner liable if family member used car

torts (6 decks)

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