Negligence Flashcards
Strict Liability
Defendant is liable for committing an act, regardless of their intent/mental state when committing the act.
Can be a Statutory Duty or a Duty est. in the CL
- Statutory Duty = “a law says you can’t do that”
- CL Duty = negligence by showing a Duty, Breach of Duty, Causation, and Damages
Foreseeability
Negligence
- Failure to use reasonable care, resulting in damage or injury to another
- A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances
- Is a Breach of Duty to use care of a reasonable and prudent man
Strict Liability Standard
Has no culpability requirement
- i.e. Only requirement to show breach of duty is that the tortfeasor committed/didn’t commit an act. If the act is performed/not performed, actor/non-actor is liable.
Also requires proof of causation between the activity and the harm
- i.e. The damage(s) must be a result of the tortfeasor’s breach as a result of their misfeasance/malfeasance/nonfeasance
- Duty
- Breach of Duty
- Causation
- Damages
Objective Reasonable Person Standard
Negligence holds a D to an objective reasonable person standard and is premised on a standard of what a reasonable person’s conduct would have been under the circumstances and reach of the standard is proven without reference to the defendant’s mental state.
Reasonable Person NOT BASED ON D. Based on average conduct of society. Compare amongst disabilities of person is disabled - Example: When assessing a blind individual, what would other blind people have done?
Reasonable Person Factors
- The foreseeable risk of harm his actions create versus the utility of his actions
- The extent of the risk so created;
- The likelihood such risk will actually cause harm to others;
- any alternatives of lesser risk, and the costs of those alternatives
Gross Negligence
A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party.
Sometimes called recklessness, willfulness, or wantonness.
Hand’s Formula
Burden of prevention is outweighed by the gravity of the Loss times the Probability of the Harm [B < L x P]
Calculated mathematically, liability may be imposed if B [the burden of avoiding harm] is less than P [the probability of injury] multiplied by the L [the injury].
Locality Rule
No longer relevant. Held docs to what others in area did.
Now there is a national standard.
Standard of Reasonable Care
Lack of informed consent constitutes medical malpractice.
Black Letter: Duty to disclose ALL of the potential risks of a procedure that a REASONABLY PRUDENT PATIENT would deem relevant in deciding on treatment
Custom
R2T – In determining whether conduct is negligent, the customs of the community, or other under like circumstance, are FACTORS to be taken into account, but are NOT controlling where a reasonable man will not follow them.
Compliance w/custom does not conclusively show lack of negligence and lack of compliance does not conclusively show negligence.
BUT, VIOLATION OF custom CREATES rebuttable presumption of negligence
Business Practice Black Letter Law
A business practice will not constitute negligence if it complies w/ the ordinary standard in the industry, an ER is not required to keep a workplace safe from ALL harm.
Custom Black Letter Law
Evidence that conduct conforms to average conduct or custom w/in an industry does not, in and of itself, mean that the conduct is not negligent.
3 Negligence Standards
Negligence Per Se
-Meaning “negligence in itself,” conduct that is deemed to be negligent as a matter of law without requiring proof that the actor breached a duty of care
Prima Facie Evidence of Negligence
-Evidence that is sufficient to establish negligence, but may be rebutted or contradicted; can be rebutted by showing how D’s act is reasonable under the circumstances
Mere Evidence of negligence
3 Question Rubric
Cause (of harm)?
Class (of persons)?
Type (of harm)?
Common Law Claims v. Statutory Claims
CL claims: so long as injury is foreseeable, no requirement that the risk of injury to P and the risk of that injury actually occurring were what made the D’s action wrongful.
- e.g. the risk of occurrence could be 1:1,000,000, but so long as that risk is reasonably w/i the duties of the bad-actor to prevent, liability is absolute.
Statutory claims– issue is statutory intent
- Was the person/thing of the “class” the statute meant to protect?
- Was injury/damages the “type” the statute meant to prevent?
- Was violation of the statute the “cause” for the harm?
- Even if a claim fails to meet the elements for statutory negligence, that doesn’t mean the claim will fail under a CL claim for negligence*
