Negligence Flashcards
- Duty
- Breach
- Causation
- Harm
Elements of Negligence
An obligation to conform to a specific standard of conduct for the protection of others against an unreasonable risk of harm
Duty
A failure to conform to conduct
Breach
The failure is both the factual and proximate cause of harm
Causation
Result of actual damages to person or property
Harm
________ & ________ are often collapsed into one and called negligent or tortious conduct.
Duty and Breach
Is a matter of law to be decided by court
Duty (Cardozo rule)
Is a matter of fact to be decided by the fact finder
Proximate cause (Andrews rule)
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
Cardozo rule
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.
Andrews rule
The burden of taking precautions (b) is less than the probability (p) and gravity (L) of harm.
Negligence balancing test (learned hand)
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
Fact Finders Consideration in Defining a Reasonable Person
Emergencies
Did D act as a resonable and prudent person would have acted under the same or similar circumstsnces
reasonable person standard
where recurring problems, courts as a matter of law, may state what conduct is required
Judge-Made Standard for reasonable person
Specific legislation (statutes, ordinances) define level of care
Legislatively determined standards of reasonable person
question is whether reasonable for person to engage in activity
Fact Finders Consideration in Defining a Reasonable Person
Competence
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.
Fact Finders Consideration in Defining a Reasonable Person
Physical Disabilities
Generally adults are treated the same regardless of intellect.
Fact Finders Consideration in Defining a Reasonable Person
Age
Whether child showed degree of care that would have been exhibited by child of like age, intelligence, and experience.
Fact Finders Consideration in Defining a Reasonable Person
Age
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.
Fact Finders Consideration in Defining a Reasonable Person
Age Exception
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
Fact Finders Consideration in Defining a Reasonable Person
Mental Deficiencies
A persons skills or knowledge that exceed those possessed by most others may be taken into account in determining reasonableness of action.
Fact Finders Consideration in Defining a Reasonable Person
Superior Skills or Knowledge
Includes negligence by any trade or profession with identifiable standards or requirements
Fact Finders Consideration in Defining a Reasonable Person
Professional Malpractice
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
Fact Finders Consideration in Defining a Reasonable Person
Legal Malpractice
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.
Fact Finders Consideration in Defining a Reasonable Person
Legal Malpractice
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.
Fact Finders Consideration in Defining a Reasonable Person
Legal Malpractice (Majority State Standard)
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.
Fact Finders Consideration in Professional Skills
Medical Malpractice
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)
Fact Finders Consideration in Professional Skills
Medical Malpractice
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)
Fact Finders Consideration in Professional Skills
Medical Malpractice (informed Consent)
Whether a reasonable person would have chosen a different treatment.
Fact Finders Consideration in Professional Skills
Medical Malpractice Majority Rule: Objective Test
Whether patient would have chosen a different treatment
Fact Finders Consideration in Professional Skills
Medical Malpractice Minority Rule: Subjective Test
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)
Judge-Made Standards for Negligence
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
Unexcused violations of Statutes
If statute is violated, D may establish that conduct is excused because of
- Incapacity
- Lack of notice
- Impracticallity or impossible to satisfy under circumstances
Excused violation of Statutes
In the absence of any other extraordinary circumstances, compliance may serve as conclusive proof that reasonable care was exercised
Compliance with Statute
P establishes that harm would not have occurred without negligent conduct on part of D a/k/a Doctrine of Res Ipsa Loquitur
Proving Breach
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
Proving Breach
Evidence directly supporting a disputed fact: e.g., eyewitness testimony that a banana peel was on the floor or that a car was speeding
Direct Proof
Evidence from which the existence or non-existence of a fact may be reasonably inferred, e.g., skid marks to suggest speeding
Circumstantial Evidence
Facts which suggest that in the absence of direct notice of a risk, D still had sufficient time to take remedial action
Constructive Notice
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
Industry Custom
Custom will not be found reasonable where lags behind new, available and affordable devices (Learned Hand analysis)
Industry Custom
Custom will be found reasonable where affordable, well-known, safe, and consistent with overall success of activity
Industry Custom
Facts showing that the nature of D’s business, e.g., marketing and display, gave rise to a substantial risk of injury to customers.
Mode of Operation
Circumstantial evidence where the “thing” (res) speaks for itself
Res Ipsa Loquitur
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.
Res Ipsa Loquitur
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
Res Ipsa Loquitur
May be invoked against multiple defendants where P establishes joint and/or integrated control over the risk
Pleading Res Ipsa Loquitur
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 _____ _____ _____
res ipsa loquitur
