Negligence

Question 1

• Duty
• Breach
• Causation
• Harm

Answer 1

Elements of Negligence

Question 2

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

Answer 2

Duty

Question 3

A failure to conform to conduct

Answer 3

Breach

Question 4

The failure is both the factual and proximate cause of harm

Answer 4

Causation

Question 5

Result of actual damages to person or property

Answer 5

Harm

Question 6

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

Answer 6

Duty and Breach

Question 7

Is a matter of law to be decided by court

Answer 7

Duty (Cardozo rule)

Question 8

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

Answer 8

Proximate cause (Andrews rule)

Question 9

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

Answer 9

Cardozo rule

Question 10

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.

Answer 10

Andrews rule

Question 11

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

Answer 11

Negligence balancing test (learned hand)

Question 12

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

Answer 12

Fact Finders Consideration in Defining a Reasonable Person

Emergencies

Question 13

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

Answer 13

reasonable person standard

Question 14

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

Answer 14

Judge-Made Standard for reasonable person

Question 15

Specific legislation (statutes, ordinances) define level of care

Answer 15

Legislatively determined standards of reasonable person

Question 16

question is whether reasonable for person to engage in activity

Answer 16

Fact Finders Consideration in Defining a Reasonable Person

Competence

Question 17

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.

Answer 17

Fact Finders Consideration in Defining a Reasonable Person

Physical Disabilities

Question 18

Generally adults are treated the same regardless of intellect.

Answer 18

Fact Finders Consideration in Defining a Reasonable Person

Age

Question 19

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

Answer 19

Fact Finders Consideration in Defining a Reasonable Person

Age

Question 20

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.

Answer 20

Fact Finders Consideration in Defining a Reasonable Person

Age Exception

Question 21

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

Answer 21

Fact Finders Consideration in Defining a Reasonable Person

Mental Deficiencies

Question 22

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

Answer 22

Fact Finders Consideration in Defining a Reasonable Person

Superior Skills or Knowledge

Question 23

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

Answer 23

Fact Finders Consideration in Defining a Reasonable Person

Professional Malpractice

Question 24

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

Answer 24

Fact Finders Consideration in Defining a Reasonable Person

Legal Malpractice

Question 25

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.

Answer 25

Fact Finders Consideration in Defining a Reasonable Person Legal Malpractice

Question 26

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.

Answer 26

Fact Finders Consideration in Defining a Reasonable Person Legal Malpractice (Majority State Standard)

Question 27

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.

Answer 27

Fact Finders Consideration in Professional Skills Medical Malpractice

Question 28

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)

Answer 28

Fact Finders Consideration in Professional Skills Medical Malpractice

Question 29

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)

Answer 29

Fact Finders Consideration in Professional Skills Medical Malpractice (informed Consent)

Question 30

Whether a reasonable person would have chosen a different treatment.

Answer 30

Fact Finders Consideration in Professional Skills Medical Malpractice Majority Rule: Objective Test

Question 31

Whether patient would have chosen a different treatment

Answer 31

Fact Finders Consideration in Professional Skills Medical Malpractice Minority Rule: Subjective Test

Question 32

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)

Answer 32

Judge-Made Standards for Negligence

Question 33

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

Answer 33

Unexcused violations of Statutes

Question 34

If statute is violated, D may establish that conduct is excused because of - Incapacity - Lack of notice - Impracticallity or impossible to satisfy under circumstances

Answer 34

Excused violation of Statutes

Question 35

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

Answer 35

Compliance with Statute

Question 36

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

Answer 36

Proving Breach

Question 37

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

Answer 37

Proving Breach

Question 38

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

Answer 38

Direct Proof

Question 39

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

Answer 39

Circumstantial Evidence

Question 40

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

Answer 40

Constructive Notice

Question 41

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

Answer 41

Industry Custom

Question 42

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

Answer 42

Industry Custom

Question 43

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

Answer 43

Industry Custom

Question 44

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

Answer 44

Mode of Operation

Question 45

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

Answer 45

Res Ipsa Loquitur

Question 46

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.

Answer 46

Res Ipsa Loquitur

Question 47

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

Answer 47

Res Ipsa Loquitur

Question 48

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

Answer 48

Pleading Res Ipsa Loquitur

Question 49

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 _____ _____ _____

Answer 49

res ipsa loquitur