Negligence Flashcards
BREACH Standard of Care?
Orindary or Negligence Per Se or Sudden Emergencies Instruction
Ordinary Standard of Care?
RPP under the circumstances reasonableness Carrol Towing Factors
Exceptions to Orindary Standard of Care
Physically Imparired-RPP is also impaired
Superior Knowledge-RPP also has the knowledge
Minors-RPP has same Age, Intelligance, Maturity and Experiences
What is Reasonable Under RPP?
Carrol Towing Factors
Carrol Towing Factors?
B
How do you Prove Reasonableness?
Expert Witnesses
Actual/Constructive Knowledge (slip and falls)
Custom, Safety Codes, Compliance w/Statute
What do you need for Res Ipsa to be applied?
Harm doesn’t ordinarily occur without negligence
D has exclusive Control of situation
P did not contribute to the harm
-Otis Elevator Case [Doesn’t need to be strict]
Effects of Res Ipsa
Replaces Breach, Actual and Prox. Cause
Evidence of Negligence OR
Presumption of Negligence
Negligence Per Se Requirements?
Statute Exists
Defines Required Conduct
Doesn’t mention civil liability
Intends to prevent the same harm (that occurred)
Intends to protect the class of persons (that were harmed)
Negligence Per Se Excuses?
Incapacity
Neither knew nor should have known
Emergency
Compliance=greater risk
Negligence Per Se Effects?
Evidence of Negligence
Rebuttable Presumption
Actual Cause
But-For Test
But-For Test Requirements?
Negligent Conduct
Negligent Conduct is A cause of harm
Fixes for Indivisible Injuries with Multiple Possible Tortfeasors?
When Can’t Divide the Injury?
-Substantial Factor Test
–If Conduct was a substantial factor then liable for the whole thing
When Can’t Tell Who Caused?
-Alternative Liability
–Shifts burden to the D’s to show they are not the but-for cause
Proximate Cause is?
Risk Rule
What is the Risk Rule?
Foreseeable Risks to: 1. This exact class of harms Foreseeability of Manner of Harm ? --No Clear Rule ---Hughes (variance) v. Doughty (unforeseeable) 2. This exact class of persons
Proximate Cause Special Rules?
Thin Skulls
Accident Aftermaths
Rescue Doctrine
Subsequent Medical Negligence
Thin Skulls rule?
Take the victim as they are
-Fragile, Rich, Remaining life
Accident Aftermaths?
Liability extends to aftermaths
Ending when
P is safe
-Another actor assumes control
Rescue Doctrine?
Rescuers are always foreseeable
- Rescuer allowed to ponder, but action must be unbroken
- Rescuer’s negligence is not a bar to recovery
Subsequent Medical Negligence?
Always foreseeable
Multiple Tortfeasors-Intervening Acts?
Majority Rule
-Supersedes when Act is not reasonably foreseeable by D1 at the time of their negligent conduct
-Intentional/Criminal Acts typically supersede
–Derdaraian Factors=Not Foreseeable
—Act is Extraordinary
—Not Independent
Minority Rule=Carrol
-Supersedes when Harm is not reasonably foreseeable by D1
P’s Contributory Neligence
Common Law
-Bar any Recovery
Modern Law
-P’s percent negligence removed from recovery
Multiple D’s Negligence
Joint and Several Liability
-One or the other or both pay the total amount
Several Liability
-Only responsible for what you are liable for
