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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q
  • Duty
  • Breach
  • Causation
  • Harm
A

Elements of Negligence

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2
Q

An obligation to conform to a specific standard of conduct for the protection of others against an unreasonable risk of harm

A

Duty

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3
Q

A failure to conform to conduct

A

Breach

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4
Q

The failure is both the factual and proximate cause of harm

A

Causation

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5
Q

Result of actual damages to person or property

A

Harm

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6
Q

________ & ________ are often collapsed into one and called negligent or tortious conduct.

A

Duty and Breach

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7
Q

Is a matter of law to be decided by court

A

Duty (Cardozo rule)

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8
Q

Is a matter of fact to be decided by the fact finder

A

Proximate cause (Andrews rule)

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9
Q

If D could perceive a risk to P by its conduct, there is a foreseeable risk, then D has a duty to be obeyed which cannot be breached

A

Cardozo rule

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10
Q

Essintially by passes a need to find duty. D is liable if Ds conduct is negligent and D is the cause in fact and proximate cause of harm.

A

Andrews rule

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11
Q

The burden of taking precautions (b) is less than the probability (p) and gravity (L) of harm.

A

Negligence balancing test (learned hand)

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12
Q

What would a reasonable person do under the emergency presented by the facts.

the existence of a sudden emergency generally is not considered an affirmative defense.

as long as choice made is reasonable, liability will not attach because of error in judgement.

Not a consideration when emergency is created by D

A

Fact Finders Consideration in Defining a Reasonable Person

Emergencies

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13
Q

Did D act as a resonable and prudent person would have acted under the same or similar circumstsnces

A

reasonable person standard

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14
Q

where recurring problems, courts as a matter of law, may state what conduct is required

A

Judge-Made Standard for reasonable person

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15
Q

Specific legislation (statutes, ordinances) define level of care

A

Legislatively determined standards of reasonable person

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16
Q

question is whether reasonable for person to engage in activity

A

Fact Finders Consideration in Defining a Reasonable Person

Competence

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17
Q

Whether person acted as a resonable person with the same or similar physical handicap

Sudden incapacitation or loss of consciousness is not an excuse if such loss was reasonably foreseeable.

A

Fact Finders Consideration in Defining a Reasonable Person

Physical Disabilities

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18
Q

Generally adults are treated the same regardless of intellect.

A

Fact Finders Consideration in Defining a Reasonable Person

Age

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19
Q

Whether child showed degree of care that would have been exhibited by child of like age, intelligence, and experience.

A

Fact Finders Consideration in Defining a Reasonable Person

Age

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20
Q

Minor will be held to an adult standard of care when child is engaged in certain dangerous activities.

Jurisdictions treat such activities differently

  • Activities characteristically undertaken only by adults or
  • activities that are inherently dangerous regardless of age or
  • activities undertaken by children over 14 years old are presumptively adult activities.
A

Fact Finders Consideration in Defining a Reasonable Person

Age Exception

21
Q

Generally person with mental deficiency is held to the same level of intelligence and stability of an ordinary, reasonable person.

Exceptions:
Sudden mental incapacity
Person institutionalized for Alzheimers

A

Fact Finders Consideration in Defining a Reasonable Person

Mental Deficiencies

22
Q

A persons skills or knowledge that exceed those possessed by most others may be taken into account in determining reasonableness of action.

A

Fact Finders Consideration in Defining a Reasonable Person

Superior Skills or Knowledge

23
Q

Includes negligence by any trade or profession with identifiable standards or requirements

A

Fact Finders Consideration in Defining a Reasonable Person

Professional Malpractice

24
Q

Attorney does not commit a breach of duty as long as

  • alleged error is on of professional judgement
  • attorney exercised resonable care in making such judgment
A

Fact Finders Consideration in Defining a Reasonable Person

Legal Malpractice

25
Q

To succeed on a malpractice claim, P must show not only that attorney was negligent but that but for such negligence, the outcome would have been different or more advantageous.

In criminal cases D must prove innocent of crime charged and any lesser included offenses.

A

Fact Finders Consideration in Defining a Reasonable Person

Legal Malpractice

26
Q

Standard is that degree of care skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in that state.

A

Fact Finders Consideration in Defining a Reasonable Person

Legal Malpractice (Majority State Standard)

27
Q

Applicable standard of medical care is that customarilly employed by the medical profession nationally and generally.

Not what one expert thinks is advisable.

Ps expert testimony must state that, under similar circumstances, no member of the profession in good standing could have done what D did.

A

Fact Finders Consideration in Professional Skills

Medical Malpractice

28
Q

If specialty is involved, then the applicable standard is that customarily employed by a member of that specialty.

(if medical issue involved a neurological problem than what a neurologist would do)

A

Fact Finders Consideration in Professional Skills

Medical Malpractice

29
Q

Patient must be told all material risks incident to treatment. A material risk is defined as one that is likely to affect a patients decision.
(either patient would have chosen no treatment or different course of treatment)

A

Fact Finders Consideration in Professional Skills

Medical Malpractice (informed Consent)

30
Q

Whether a reasonable person would have chosen a different treatment.

A

Fact Finders Consideration in Professional Skills

Medical Malpractice Majority Rule: Objective Test

31
Q

Whether patient would have chosen a different treatment

A

Fact Finders Consideration in Professional Skills

Medical Malpractice Minority Rule: Subjective Test

32
Q

Rules that attempt to articulate appropriate conduct on issue of continuing importance.

Created because court believes either exisiting standard or lack of a standard does not seem to be in line with application of Learned Hand test (gravity and probability of harm outweighs burden)

A

Judge-Made Standards for Negligence

33
Q

In some jurisdictions, unexcused violations serve as conclusive evidence of duty and breach (negligence as a matter of law, or negligence per se)

In some jurisdictions unexcused violations serve only as either a prima facie case of evidence which may be rebutted by defendant or only some evidence of negligence which the jury does not have to believe

A

Unexcused violations of Statutes

34
Q

If statute is violated, D may establish that conduct is excused because of

  • Incapacity
  • Lack of notice
  • Impracticallity or impossible to satisfy under circumstances
A

Excused violation of Statutes

35
Q

In the absence of any other extraordinary circumstances, compliance may serve as conclusive proof that reasonable care was exercised

A

Compliance with Statute

36
Q

P establishes that harm would not have occurred without negligent conduct on part of D a/k/a Doctrine of Res Ipsa Loquitur

A

Proving Breach

37
Q

P establishes that D’s conduct was below a standard set by one (or more) of the following:
Application of the Learned Hand Test, i.e. B

A

Proving Breach

38
Q

Evidence directly supporting a disputed fact: e.g., eyewitness testimony that a banana peel was on the floor or that a car was speeding

A

Direct Proof

39
Q

Evidence from which the existence or non-existence of a fact may be reasonably inferred, e.g., skid marks to suggest speeding

A

Circumstantial Evidence

40
Q

Facts which suggest that in the absence of direct notice of a risk, D still had sufficient time to take remedial action

A

Constructive Notice

41
Q

Facts showing that D did not comply with industry standards and that industry standard was reasonable, i.e., proof of compliance is relevant but not controlling

A

Industry Custom

42
Q

Custom will not be found reasonable where lags behind new, available and affordable devices (Learned Hand analysis)

A

Industry Custom

43
Q

Custom will be found reasonable where affordable, well-known, safe, and consistent with overall success of activity

A

Industry Custom

44
Q

Facts showing that the nature of D’s business, e.g., marketing and display, gave rise to a substantial risk of injury to customers.

A

Mode of Operation

45
Q

Circumstantial evidence where the “thing” (res) speaks for itself

A

Res Ipsa Loquitur

46
Q

Jury is permitted to infer negligent conduct on part of D even though P did not introduce direct evidence or other circumstantial evidence about negligent conduct.

A

Res Ipsa Loquitur

47
Q

Event giving rise to the harm must be of the type which does not ordinarily occur in the absence of negligence; and
The instrumentality causing injury was under the exclusive management and/or control of D at time the negligence more likely than not occurred
P does not have to rule out all other possible defendants – that burden shifts to defendant
Control may be satisfied by proof of which party had greater access to information which may have prevented negligence

A

Res Ipsa Loquitur

48
Q

May be invoked against multiple defendants where P establishes joint and/or integrated control over the risk

A

Pleading Res Ipsa Loquitur

49
Q

May plead ____ _____ ______ in the alternative to specific act of negligent conduct, but if expert or direct testimony establishes specific negligent conduct, then P may not rely on _____ _____ _____

A

res ipsa loquitur

Torts (13 decks)

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