Negligence

Question 1

Generally

Answer 1

1. Duty
2. Breach
3. Actual causation/proximate cause
4. damages

Preponderance of the Evidence

Question 2

Duty

Answer 2

Duty to all foreseeable persons

Cardozo - within the zone of reasonable harm
Minority - everyone harmed, if D could foresee harm to anyone

Question 3

are rescuers foreseeable plaintiffs?

Answer 3

yes

if D puts either rescuer or rescued in danger, then liable for rescuer’s injuries

UNLESS emergency personnel (firefighter’s rule)

Question 4

NO DUTY TO ACT except

Answer 4

1. assumption of duty - voluntarily aids/rescues then must act with reasonable care in the rescue
2. put another in peril - exercise reasonable care to prevent further harm
3. contract
4. authority - parent/child, employer/employee
5. relationship - carrier/passenger, innkeeper/guest

Question 5

Things to take into account when evaluating standard of care

Answer 5

OBJECTIVE STANDARD

1. special skill or knowledge - same skill, knowledge as another practitioner
2. physical disabilities
3. children - reasonable child of similar age, intelligence, experience
4. custom in a community/industry (but not conclusive, everyone can be negligent)
5. safety codes

Question 6

Things that ARENT taken into account when evaluating standard of care

Answer 6

1. mental abilities - disability not considered

2. intoxication (unless involuntary)

Question 7

Doctors and informed consent

Answer 7

specific obligation to explain risks of medical procedure

DO NOT need to disclose:

1. commonly known risk
2. when patient is unconsious
3. when patient waives/refuses
4. patient is incompetent (but should try and get consent from the guardian)
5. when disclosure would be detrimental to patient

Question 8

Negligence per se

Answer 8

when standard of care is determined by statute

• Must be in class of people intended to be protected
• harm is type statute was intended to protect against

Question 9

Defenses to negligence per se

Answer 9

compliance would have had a greater risk of harm
violation is reasonable in light of disability
exercised reasonable care in trying to comply
statute is vague
reasonable ignorance of the statute

Question 10

duty of care owed to car passengers

Answer 10

ordinary care to guests and paying passengers

EXCEPT guest statute - only duty to refrain from gross misconduct for guests

Question 11

Duty to undiscovered trespassers

Answer 11

refrain from willful, wanton, reckless or intentional misconduct

Question 12

Duty to anticipated/known trespassers

Answer 12

duty to warn/protect from concealed, dangerous ARTIFICIAL conditions

Question 13

Minority/third restatement approach to trespassers

Answer 13

reasonable care, except to flagrant trespassers

Question 14

Duty to invitee (business)

Answer 14

reasonable care - inspect property, discover unreasonably dangerous conditions, protect invitee from them

NON-DELEGABLE - remain liable if contractor’s negligence injures an invitee

Question 15

Duty to Licensee (social)

Answer 15

correct or warn of concealed dangers that are known or should be obvious to owner

Question 16

RES IPSA factors

Answer 16

1. accident was of a kind that ordinarily does not occur in the absence of negligence
2. accident caused by something in the exclusive control of D
3. Accident was not due to any action on part of the plaintiff

Question 17

Actual Cause

Answer 17

Cause in fact

BUT FOR
or
SUBSTANTIAL FACTOR (if multiple tortfeasors or multiple causes)

Question 18

Proximate Cause

Answer 18

Foreseeability of harm + no severing of the chain

Majority - reasonably foreseeable consequences
Minority - flow directly/direct cause (even if not foreseeable)

Question 19

Does an intervening event break the chain?

Answer 19

depends on if it supersedes

If foreseeable, NO. If unforeseeable, then probably supersedes and breaks the chain

Question 20

Do you need damages for NEID?

Answer 20

yep

Question 21

What about economic loss and negligence?

Answer 21

usually can’t recover for economic loss alone. must be linked to personal injury or property damage, then can ask for it

Question 22

defenses to negligence

Answer 22

contributory negligence

comparative fault