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Torts - Mid-Term Law School Review > Negligence > Flashcards

Negligence Flashcards

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1
Q

Define Negligence Per Se

Negligence

A

A statute specific duty that replaces the more

general common law duty of due care.

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2
Q

What elements are necessary in Negligence Per Se?

Negligence

A

The violation of a statute that:

  1. Provides for criminal penalty
  2. Clearly defines a standard of conduct
  3. Was designed to prevent the type of harm suffered by the plaintiff, and;
  4. The plaintiff is within the protected class
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3
Q

What two elements of ordinary negligence does Negligence Per Se establish?
Negligence

A

Duty and Breach

Violation of the statute establishes a presumption of duty and breach of duty.

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4
Q

Within Negligence Per Se, does compliance with a statute establish reasonable care per se?
Negligence

A

No, but compliance with the statute may be evidence of due care.

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5
Q

Essay Note for Negligence/Negligence Per Se

Negligence

A

If a criminal statute is involved, start with negligence per se and work it through. Then go to ordinary negligence.

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6
Q

What is the first element required to prove Negligent Infliction of Emotional Distress (NIED)?
Negligence

A

The defendant must have acted negligently.

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7
Q

What is the second element that must be proven, other than that the defendant acted negligently, for NIED?
Negligence

A

That the plaintiff was within the target zone or zone of danger.

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8
Q

Within NIED, must the plaintiff suffer some physical manifestation (physical injury) of the emotional distress? Is this the third and final element?
Negligence

A

Yes, unlike IIED, in NIED there must be some physical manifestation of the emotional distress.

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9
Q

Are there exceptions to the physical manifestation of emotional injury rule in NIED?
Negligence

A

Yes, two exceptions:

  1. Defendant erroneously reports a relative’s death
  2. The mishandling of a relative’s corpse
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10
Q

Are there exceptions to the “target zone” requirement in NIED?
Negligence

A

Yes, when plaintiff is a bystander and:

  1. Plaintiff and the injured person are closely related
  2. Plaintiff was at the scene of the injury.
  3. Plaintiff perceived or observed the event.
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11
Q

What is the difference between Third Party IIED and Bystander NIED?
Negligence

A

In the Third Party IIED, the defendant must KNOW that the plaintiff and victim are closely related AND know that the plaintiff is present at the scene when causing physical harm to the victim.

In other words, the emotional distress inflicted upon the third party in IIED is intentional.

For Bystander NIED, the defendant has acted negligently (not intentionally) and caused harm to another.

The plaintiff has observed or perceived the event causing the harm and is closely related to the victim.

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12
Q

What is Bystander NIED clearly stated?

Negligence

A

The defendant has acted negligently (not intentionally) and caused harm to another. The plaintiff has observed or perceived the event causing the harm and is closely related to the victim.
*Think as if the relative saw a family member struck by a car at a bus stop.

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13
Q

What is NIED clearly stated?

Negligence

A

A defendant has acted negligently, the plaintiff is within the target zone, and has suffered some physical manifestation of emotional distress as a result.
*Think about almost being struck by car at bus stop, then vomiting constantly upon thinking of it.”

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14
Q

Define Breach

Negligence

A

When the defendant’s conduct falls short of the required standard of care.

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15
Q

Does injury alone prove breach?

Negligence

A

No, injury alone does not prove breach.

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16
Q

What should a discussion around breach consist of?

Negligence

A

Whether a defendant did something that a reasonable person would not have done OR did not do something that a reasonable person would have done.

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17
Q

What does Res Ipsa Loquitur mean in Latin?

Negligence

A

The thing speaks for itself.

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18
Q

What type of an accident would Res Ipsa Loquitur be applied to?
Negligence

A

A type of accident that would not normally occur unless someone was negligent.

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19
Q

What is necessary to prove Res Ipsa Loquitur?

Negligence

A

In addition to:

  1. Being the type of accident that would not normally occur unless someone was negligent , then also;
  2. . The instrumentality causing the injury was under the sole control of the defendant;
  3. The plaintiff did not contribute to his own injury.
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20
Q

What two elements of negligence would Res Ipsa Loquitur satisfy if proven?
Negligence

A

Duty and Breach

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21
Q

What is the difference between Negligence Per Se and Res Ipsa Loquitur.
Negligence

A

In Negligence Per Se, duty and breach are proven by the violation of a criminal statute and someone that statute was made to protect was harmed as a result (running red light and hitting car).

In Res Ipsa Loquitur, the type of accident is such that would not normally occur unless someone had breached a duty (barrel falling from a window), but no one saw it or can prove what happened.

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22
Q

What are the two types of causation in negligence?

Negligence

A

Actual and Proximate

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23
Q

What is actual cause?

Negligence

A

“But for” cause

24
Q

What is proximate cause?

Negligence

A

Foreseeability. Was the harm foreseeable?

25
Q

What are the two types of proximate cause?

Negligence

A

Direct and Indirect

26
Q

What is direct proximate cause?

Negligence

A

When there is no intervening act by a third-party (or act of God) between the defendant’s act and the plaintiff’s injury.

For example: While negligent, I drove my car directly into plaintiff, causing his injuries.

27
Q

Are all direct causes automatically proximate causes?

Negligence

A

Yes, all direct causes are proximate causes. When there is a direct cause, proximate cause is proven.

28
Q

What is an indirect proximate cause?

Negligence

A

When there IS an intervening act by a third-party (or act of God) between the defendant’s act and the plaintiff’s injury.

29
Q

To be liable under indirect proximate cause, does the intervening harm to the plaintiff (caused by a third-party or God) have to be foreseeable?
Negligence

A

Yes, under indirect proximate cause, the intervening act must be FORESEEABLE for the defendant to be liable.

30
Q

Within indirect proximate cause, what are the two types of intervening acts?
Negligence

A

Dependent (foreseeable) and Independent (foreseeable AND not foreseeable).

31
Q

Within indirect proximate cause, what is a dependent intervening act?
Negligence

A

A dependent intervening act is almost ALWAYS FORSEEABLE. It was dependent upon, and flowed naturally from, the negligent act.

For example: Medical malpractice on the plaintiff

32
Q

So, within indirect proximate cause, Medical Malpractice is a dependent (foreseeable) intervening act after someone is injured by a defendant?
Negligence

A

Yes, medical malpractice against the plaintiff is both foreseeable after injury AND would not have occurred without the injury. This makes it a dependent (foreseeable) intervening act.

33
Q

Within indirect proximate cause, other than medical malpractice, what other events are dependent (foreseeable) intervening acts?
Negligence

A
  1. Any normal forces or natural reactions that are created by defendant’s negligent act.
  2. Subsequent injury (hit by a car while lying in the street)
  3. Subsequent disease (catches pneumonia in the hospital)
  4. Negligence of Rescuers (dropped from a helicopter)
  5. Escape Forces
  6. Efforts to protect person or property
34
Q

What is an independent intervening act?

Negligence

A

Acts that may also arise from the injury but are not natural responses or reactions. They may be foreseeable OR unforeseeable.

35
Q

So, within indirect proximate cause, what independent intervening acts are foreseeable?
Negligence

A

Third-persons: Negligent acts of 3rd persons

God: Predictable weather, storms, floods.

36
Q

So, within indirect proximate cause, what independent intervening acts are NOT foreseeable?
Negligence

A

Third-persons: Intentional torts and criminal acts

God: Not predictable weather: Earthquakes, lightning

37
Q

Within proximate cause, what is the “casual chain’?Negligence

A

A chain of foreseeability that cannot be broken.

38
Q

So, within indirect proximate cause, an independent intervening act that was not foreseeable breaks the causal chain?
Negligence

A

Yes

39
Q

Are damages a part of the prima facie case for negligence?

Negligence

A

Yes

40
Q

So, there can be no negligence without damages?

Negligence

A

Correct, there can be NO negligence without damages.

41
Q

Within actual cause, what does “but for” mean?

Negligence

A

But for the negligent act, there would be no injury.

42
Q

Within actual case, can there be more than one cause of the plaintiff’s injury?
Negligence

A

Yes, these are called concurrent causes.

43
Q

Within actual cause, what are concurrent causes?

Negligence

A

Concurrent causes are causes that happen at the same time to create the injury.

44
Q

Within actual cause, what types of concurrent causes are there?
Negligence

A

Insufficient and Sufficient

45
Q

Within actual cause, what are insufficient concurrent causes?
Negligence

A

Causes that, by themselves, would not “alone” have caused the injury.

46
Q

With multiple insufficient concurrent causes, what test is applied to determine if they were the actual cause of the injury?
Negligence

A

The “but-for” test.

Think, one camper negligently spilled gasoline and failed to clean it up. Another camper negligently dropped a smoldering cigarette on the spot later. Neither cause, alone, would have resulted in a blazing brush fire that destroyed plaintiff’s home.

Therefore, both defendants were negligent and both, together, make up the actual cause “but-for” cause.

47
Q

Within actual cause, what are sufficient concurrent causes?

Negligence

A

Causes that occur at the same time but are not dependent on one another to cause the injury. They are each “sufficient” to cause the injury by themselves, and just happened to occur at the same time.

Think, two major fires started by two different unrelated people meet at the plaintiff’s home and destroy it. Either would have done it on its own, but both did it.

48
Q

With multiple sufficient causes, what test can be applied to determine actual cause?
Negligence

A

The “substantial-factor” test.

Both defendant’s are responsible for the injury as both were substantial factors. The “but-for” test wouldn’t work.

49
Q

Why doesn’t the “but-for” test work with multiple sufficient causes?
Negligence

A

Two fires, equally capable, destroy as home. One plaintiff started each fire independently at the same time:

But-for plaintiff 1’s fire, would the home have been destroyed? Yes, by plaintiff 2’s fire.

But-for plaintiff 2’s fire, would the home have been destroyed? Yes, by plaintiff 1’s fire.

So both plaintiff’s say “See, I didn’t cause it”.

Wrong, both are liable as both were “substantial factor’s”.

50
Q

How can “but-for” be applied to multiple insufficient causes?
Negligence

A

A fire destroys a home. P1 spilled gasoline, the next day P2 independently dropped a smoldering cigarette.

“But-for” P1 spilling the gasoline and “but-for” P2 dropping the smoldering cigarette, the injury would not have occurred.

P1 and P2 say “I didn’t start the fire, I’m not liable”,

Wrong. Both make up the actual cause, together, and both are liable.

51
Q

Within actual cause, what if there are multiple parties involved in an injury, but only one caused it, and no one knows who, what is it called?
Negligence

A

This is called “Multiple Parties - Alternative Cause”

52
Q

Within actual cause, can you give an example of what “multiple parties - alternative cause” is?
Negligence

A

Two hunters fire at a deer and hit another hunter. Only one shotgun pellet was found in the hunter, and no one knows which gun it came from. Who is liable?

53
Q

Within “Multiple Parties - Alternative Cause”, how is liability determined?
Negligence

A

Both defendant’s are fully liable if they cannot prove which one did it.

54
Q

So, within “Multiple Parties - Alternative Cause”, both defendant’s are fully liable for the injury, but who is responsible for proving which one actually did it?

A

The burden of proof is on the defendant’s. If one can prove he didn’t do it, he is relieved of liability.

55
Q

So, within “Multiple Parties - Alternative Cause”, what if neither defendant can prove they didn’t cause the injury?
Negligence

A

The both are jointly and severally liable. Both are responsible for 100% of the damages, and the plaintiff can sue either or both. But the plaintiff cannot recover more than 100% of the damages awarded.

56
Q

Within “Multiple Parties - Alternative Cause”, I thought the burden of proof was never on the defendant’s?
Negligence

A

You’re thinking of criminal law. In criminal law, the burden of proof is always on the prosecutor, never the defendant’s.

57
Q

So what if “Multiple Parties - Alternative Cause” happened in criminal law?
Negligence

A

The burden of proof would be on the state to determine which defendant was guilty.

Torts - Mid-Term Law School Review (5 decks)

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