Negligence

Question 1

neglience analysis

Answer 1

always identify the specific negligent act:
always list the elements of negligence, in order
always use the words duty risk
always discuss each element

Question 2

negligence elements

Answer 2

first, cause in fact 
second, duty/risk, traditional duty 
third,  duty/risk, scope of the duty 
fourth, breach of the duty
fifth, injury

Question 3

Cause in fact analysis:

Answer 3

gauged by either the but for OR substantial factor standard

but for = but for the alleged negligent conduct, would the injury have occurred?
if it would have occurred anyway, but-for cause not met

substantial factor = was the alleged negligence a substantial factor in causing the plaintiff’s injury
matters where there are multiple sufficient (but-for) causes

“more probable than not” is the standard of proof =
defendant’s contribution though negligence must be at least 50%

lost chance:
active in medical malpractice cases only — we change the injury from actual injury to “lost chance to survive/keep the limb/etc”

Question 4

Traditional duty analysis

Answer 4

defendant is always required to be a reasonable ordinary prudent person under like circumstances

note: reasonable is not average; it’s above average
note: someone with a physical disability is analyzed as a reasonable, ordinary, prudent person of the same disability (ie, blind person)
note: someone with a mental disability is analyzed as a reasonable, ordinary, prudent person of no mental disability
note: children are held to a standard of like age and development

Question 5

other mechanisms to find traditional duty absent ordinary person objective analysis

Answer 5

negligence per se
industry custom
res ipsa loquitor

Question 6

res ipsa requirements to use

Answer 6

event is of the kind that ordinarily does not occur in the absence of negligence
other responsible causes including the conduct of plaintiff and third persons are sufficiently eliminated by the evidence
indicated negligence is within the scope of the defendant’s duty to the plaintiff

Question 7

Scope of the duty and analytical factors

Answer 7

was this plaintiff’s injury within the scope of the defendant’s duty?
foreseeable risk / foreseeable plaintiff
ease of association
superseding and intervening causes
Pitre policy factors

Question 8

analysis of foreseeability and ease of association in negligence

Answer 8

is this plaintiff a foreseeable plaintiff?
is the risk/result easily foreseeable?
AND
how easily can this injury be associated with the negligent act?

Question 9

breach definition

Answer 9

defendant breaches his duty when his conduct falls below the standard of reasonable care. the defendant is said to have breached when he has created an unreasonable risk.

Question 10

Hand formula / risk utility balancing

Answer 10

b < pl

burden of the precaution < loss associated with negligence * probability of the loss

Question 11

Injury:

Answer 11

you have to have suffered a compensable injury

Question 12

lost chance

Answer 12

this is an available theory in medical malpractice only.

lost chance to survive.

Question 13

emotional distress or “fear of disease”

Answer 13

can recover for emotional distress or fear of disease claims

a plaintiff can recover for fear of contracting a disease from toxic exposure

Question 14

Slip and fall:

Answer 14

remember that the statute exists

4 elements:
the condition presented an unreasonable risk of harm
the harm was reasonably foreseeable
the merchant either created, or had actual or constructive knowledge of the condition which caused the harm
merchant failed to exercise reasonable care

statute applies to MERCHANTS

Question 15

Negligent infliction of emotional distress:

Answer 15

this tort deals with cases where emotional distress is the ONLY injury. it does not apply to cases where emotional distress is associated with a physical injury

usually, this is in bystander cases

elements:
plaintiff must either view the accident or come upon the scene soon thereafter
direct victim must suffer such harm that it is reasonable to expect that the person in the plaintiff’s position would suffer severe emotional distress
emotional distress must be severe
plaintiff must fall within the list of claimants: parents, grandparents, spouses, siblings, children
causation: event must have caused severe emotional distress

key fact: the plaintiff needs to have really seen the injury happen. you need to have seen the incident or the immediate aftermath; and needs to be a sudden traumatic incident

Question 16

medical malpractice

Answer 16

standard of care is a customary standard of care. its the standard of a reasonable doctor practicing in the same specialty in the same vicinity
malpractice defined = any unintentional tort or any breach of contract based on health care or professional services rendered, by a health care provider to a patient
there is a damages cap of $500,000
medical review panel
informed consent
lost chance of survival or better outcome
specific prescription rules

Question 17

factors to determine medical malpractice or not

Answer 17

was the wrong treatment related or caused by a dereliction of professional skill
key factor: does the wrong require expert medical evidence to determine breach
did the wrong involve an assessment of the patiens condition
was there a patient physician relationship
would the iinjury have happened if the patient had not sought treatment
is the alleged tort an intentional torrt

Question 18

qualified health care provider requirements

Answer 18

need to purchase or provide for insurance coverage for first $100k of coverage
then go to government, show evidence of coverage
then pay fee/premium to the government-run Patient Compensation Fund
after this, you are responsible for first $100k of damages

Question 19

Medical Review Panel rules

Answer 19

patient submits a request to panel first (before goes to court - if files in court first, then doesnt interrupt prescription and is dismissed for immaturity)
panel is three voting medical professionals, and a non-voting attorney chair
panel decides whether QHCP acted in violation of standard of care
plaintiff to get recovery, must file in court or settle after review panel has issued decision

Question 20

Informed consent:

Answer 20

applies to both QHCP and non-QHCP
duty of professional is to disclose all material risks
materiality includes risks which a reasonable person would consider significant
each year, state issues documents that state what risks need to be disclosed for particular procedures – if forms used, rebuttable presumption that informed consent existed

Question 21

attorney malpractice

Answer 21

burden-shifting approach: once plaintiff establishes a prima facie case that the attorney’s negligence caused a loss; then the burden shifts to the attorney defendant to show that the plaintiff would not have won
standard of care is a customary standard of care
one year prescriptive period from date you knew or should have known of the malpractice, subject to three year peremptive cap

Question 22

sale or service of alcohol

Answer 22

statutory limitation of those selling or serving alcohol
a permitted seller is not liable for off-site injuries UNLESS the drinker is under the age of majority
social hosts are no responsible for off-site injuries unless the drinker is under the age of majority
so, as long as drinker is of age, no liability, period.

Question 23

strict liability

Answer 23

same as negligence except we assume the person knew of the danger
for things and building liability, we have negligence standard

Question 24

“strict” liability for damage by things and property

owner defendant

Answer 24

owner or custodian of a thing is responsible for damage from its ruin, vice, or defect when
owner had knowledge or constructive knowledge of the ruin, vice or defect,
that the damage could have been prevented by reasonable care (causation)
and that the owner failed to exercise reasonable care

• analyze it as negligence, just note that it used to be codified strict liability for things and buildings

Question 25

liability for landlord/tenant agreements

Answer 25

landlord is strictly liable for injury to the tenant, unless that responsibility has been shifted by agreement to negligence (almost all are)

Question 26

parental liability

Answer 26

parents are responsible for the acts of children residing with them when
the act of the child would be negligent if performed by an adult

so: this can create liability even when child is acting as a prudent child of similar age and development

Question 27

animal liability

Answer 27

owners of animals are held to a negligence standard
unless thee animal is a dog

owners of dogs are strictly liable for damages which
the owner could have prevented
and he failed to exercise

Question 28

absolute liability

Answer 28

liability without fault

exists only for pile driving and blasting

otherwise, liability only exists when :

defendant had actual or constructive knowledge of the risk
that the damage could have been prevented by reasonable care
and that the owner failed to exercise reasonable care

Question 29

violation of a non-tort statute

Answer 29

creates negligence per se which is
an inference of negligence

The trier of fact is free to reject the inference of negligence.

Question 30

for traditional duty analysis, “standard” =

Answer 30

the reasonable, ordinary, prudent actor in similar circumstances
note: industry custom is helpful here

Question 31

for scope of duty analysis, apply ___ factors

Answer 31

Pitre policy factors: 
need for compensation
historical  development of precedent
moral aspects of defendants conduct 
efficient administration of the law 
deterrence of future harmful conduct 
capacity to bear or distribute losses