Negligence Attack Phrases

Question 1

Definition

Answer 1

Negligence is the failure of an actor to exercise reasonable care when faced with foreseeable risk.

Question 2

Elements

Answer 2

To prove negligence, P must show that 1) D owed P a duty of care which 2) D breached; and 3) P was harmed, of which D’s breach was the 4) actual and 5) proximate cause.

Question 3

Duty Rule Statement

Answer 3

D owes all foreseeable plaintiffs a duty to adhere to a standard of care. Under the majority view, P is a foreseeable plaintiff because a reasonable [person in D’s position] would foresee that P was placed at an unreasonable risk of harm due to [x facts].
Under the minority view, P is a foreseeable plaintiff because he owes a duty to the whole world. The foreseeability factor will be examined in proximate cause.

Question 4

Duty Viable Fetus

Answer 4

Because D owed P a duty, P’s viable fetus is also a foreseeable plaintiff.

Question 5

Duty Rescuer

Answer 5

It is reasonably foreseeable that if D negligently put himself [or another] in peril, that someone would be hurt trying to render assistance. Because D’s [conduct] caused P to attempt to rescue/aid x by doing y, P was a foreseeable plaintiff.

Question 6

Duty volunteer rescue

Answer 6

D had no duty to rescue P. However, here, D voluntarily undertook to rescue [or assist] P when he did [x]. And P relied on that rescue [assistance] as shown by [y], so D is a foreseeable plaintiff.

Question 7

Duty to control third parties

Answer 7

P is a foreseeable plaintiff because D owed P a duty to control Y because of [z relationship].

Question 8

Duty to control third parties relationships

Answer 8

business/customers, jailor/jailee, school/students, parent/child

Question 9

Duty Standard of Care General

Regular standard

Answer 9

D had a duty to act as a ordinary, reasonable prudent person acting under the same or similar circumstances. Here, D owed a duty to act as an [x] in [y] circumstance.

Question 10

Duty Standard of Care Superior Knowledge

Answer 10

Because D has superior knowledge of x, D had a duty to act as a, reasonable prudent with that knowledge, acting under the same or similar circumstances. Here, D owed a duty to act as y in z circumstances.

Question 11

Duty Standard of Care Unusual Physical Characteristics

Answer 11

Because D is [physical characteristics], D had a duty to act as an ordinary, reasonable prudent [x person] acting under the same or similar circumstances. Here, D owed P a duty to act as x in y circumstances.

Question 12

Duty Standard of Care Insanity/Mental Deficiency

Answer 12

Because D is an adult, D’s [mental deficiency] does not lessen the standard of care

Here, D had a duty to act as an ordinary, reasonable prudent [x person] acting under the same or similar circumstances.

Question 13

Duty Standard of Care Emergency

Answer 13

D had a duty to act as an ordinary, reasonable, prudent person under the same or similar circumstances. Because emergencies are circumstances to be considered, D owed P a duty to act as an x in y circumstances.

Question 14

Duty Standard of Care Child (Not Adult Activities)

Answer 14

Because D is a minor, D had a duty to act as a child of like age, intelligence and experience. Here, D had a duty to act as [apply facts].

Question 15

Duty Standard of Care Professional Malpractice

Answer 15

Because D is a [x professional], D had a duty to act as a reasonably prudent person who has the knowledge and skill of a [profession] in good standing under the same or similar circumstances. Here, D owed P a duty to act as x in y.

Question 16

Duty Standard of Care Informed Consent

Answer 16

Because D is a medical professional, he had D had a duty to give P enough information about the risks of [x procedure] to provide informed consent.

Question 17

Duty Standard of Care Undiscovered Trespasser

Answer 17

P was an undiscovered trespasser because he came onto D’s premises without permission or knowledge. D owed P a duty not to engage in willful or wanton misconduct.

Question 18

Duty Standard of Care Dare
Known Trespasser

Answer 18

P was a known trespasser because P was on the land without D’s consent or other legal privilege because [facts], and D knew or had reason to know of his presence because [facts].

D owed P a duty to:
1) not act in a willful or wanton manner;
2) Warn of any known hidden dangers;
3) Use reasonable care in engaging in activities involving a risk of death or serious bodily harm.

Question 19

Duty Standard of Care
Trespasser

Consent

Answer 19

Consent can be given by words, actions or inaction. Here, a reasonable person would/would not understand the words, conduct or inaction of D to consitute consent because of [facts].

Question 20

Duty Standard of Care Attractive Nuisance

Answer 20

D owed P a duty of reasonable care to eliminate the danger of artificial conditions on the land if:
1) D knows or has reason to know children are likely to trespass
2) D knows or has reason to know of the condition, and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to the children;
3) The children would not would not discover the condition or realize the risk;
4) the utility of maintining the condition and burden of eliminating the danger are slight compared to the risk.

Here, D knew children trespassed because of [facts], D knew [or had reason to know] that [x condition] would pose an unreasonable risk beause of [facts], P did not appreciate/discover the risk because [facts] and the burden of eliminating the danger was slight because [facts}.

Question 21

Duty Standard of Care Licensee

Answer 21

P was a licensee because she was on D’s property with permission [as a social guest][for her own benefit][with a lawful purpose of] as shown by [facts].

D owed P a duty to exercise reasonable care to make artifical or natural conditions safe or to warn P of danger because D knew [had reason to know] of the danger and had reason to believe D would not discover the danger. Here, D owed a duty to warn of or make safe [x danger] because of [y facts].

Question 22

Duty Standard of Care Business Invitee

Answer 22

P was a business invitee because she entered D’s property for a business purpose.

D owed a P a duty to act with reasonable care under the circumstances, which includes a duty to inspect for dangers and take steps to protect the invitee against such danger.

Here, D owed a duty to [x] beause [y].

Question 23

Duty Standard of Care Public Invitee

Answer 23

P was a public invitee because she entered property that was open to the public as shown by [facts]. D owed a duty to make reasonable inspections and to warn of or make safe all dangers he knows of or should know of. Here, D owed a duty to [x facts].

Question 24

Duty Standard of Care Third parties

Answer 24

D owed P a duty to use reasonable care to protect her because he knew or should have known he exposed P to unreasonable risk of harm from Y. P knew or should have known of this risk because of [z].

Question 25

Duty Negligence Per Se

Answer 25

To establish a statutory standard of care, P must prove that 1) D violated a statute without excuse, 2) P was in the class of persons the statute was meant to protect; and 3) P’s injury was the type the statute was meant to prevent. Here, [x statute] will/will not apply because [x facts].

Question 26

Duty to resuce - standard

Answer 26

There is generally no duty to act affirmatively to rescue/aid another. However, here, D had a duty to resuce P because [x facts].

Question 27

Duty to rescue - reasons

Answer 27

1) Special relationship; 2) contract; 3) statute; 4) D caused P’s peril; 5) P was relying on D’s resuce as proved by [y].

Question 28

Duty to rescue-special relationships

Answer 28

therapist/patient; parent/child; spouse/spouse; employer/employee; jailer/prisoner; common carrier/passenger

Question 29

Duty Counter Argument - not foreseeable

Answer 29

D will argue that P was not a foreseeable plaintiff because [x]. However, a judge will likely find P was a foreseeable plaintiff because P was in the zone of danger as proven by y.

Question 30

Duty Counter Argument- reckless rescuer

Answer 30

D may argue he does not owe a duty to P because when P did [x] she acted recklessly to rescue Y. X was reckless because [z]. This argument will/will not fail because of [w].

Question 31

Duty Counter Argument - firefighter’s rule

Answer 31

P will argue D owes him a duty because his injuries were attributable to [x negligence] which is not the reason he was at the scene. This argument will/will not fail because of [y facts].

Question 32

Duty Counter Argument - not invitee

Answer 32

D may argue that P was a licensee not an invitee because [x] which means he only owed a duty to warn of or make safe concealed dangers that he knew of. However, the argument will likely fail because [x facts].

Question 33

Duty Counter Argument - not licensee

Answer 33

D may argue that P is a trespasser, not a licensee because he did not consent for P to be on his property, which means he only owed a duty to warn of any concealed artificial dangers he knew about. However, a judge will likely find D gave implied consent because of [x facts].

Question 34

Duty counter argument - assumption of risk

Answer 34

In a comparative fault jurisdiction, D would likely argue that he did not owe P a duty because she knowingly and voluntarily assumed the risk when she did [x].

Question 35

Duty counter argument - criminal activity

Answer 35

D will likely argue he did not owe P a duty because she committed a crime when she did [x].

Question 36

Duty Counter Argument - negligence per se

Answer 36

D will argue that negligence per se does not apply because [insert excuse]. However, a judge will likely find that it does apply because [x facts].

Question 37

Duty negligence per se excuses

Answer 37

it was more dangerous to comply due to x; he was incapacitated due to x; he did not know of or have reason to know of the statute due to x; of [x emergency situation]; he could not reasonably comply due to x

Question 38

Duty Conclusion

Answer 38

Therefore, P will likely prove that D owed her a duty.

Question 39

Breach General

Answer 39

P must establish D failed to comply with the appliable standard of care and that a reasonable alternative course of action would have most likely prevented or mitigated her harm. Here P will say D breached his duty because [facts], and that [alternative] was a reasonable alternative course of action.

Question 40

Breach Volunteer Rescue

Answer 40

When D did [x] he breached his duty because he acted negligently in his attempt to rescue P, and the failure deterred or impeded others’ rescue efforts, X was negligent because [y], and caused rescue efforts of [others] to be impeded because of [z].

Question 41

Breach Learned Hand Formula

Answer 41

A jury will usually de4termine the reasonableness of D’s conduct by weighing the probability of harm multiplied by the potential severity of the harm, against the burden to P of taking the precautions P argues were reasonable. Here, the probability of harm was [x] based on y facts. And the potential severity was x based on y facts. However, the burden was x based on y facts. Since the burden was [minor][excessive] compared to the product of the other factors, a jury will likely find that D’s conduct was [reasonable/unreasonable], and thus he breached his duty.

Question 42

Breach res ipsa loquitur

Answer 42

The doctrine of res ipsa loquitur allows P to establish negligence when the circumstances that lead to the harm are not clear. P must show that:
1) there is no direct evidence of D’s conduct in connection with the harm;
2) the incident causing the harm ordinarily happens because of the negligence of the class of actors to which D belongs,
4) P’s negligence did not contribute to the harm.

Question 43

Breach
Res Ipsa Loquitur Analysis

Answer 43

First, the facts tell us [there is no evidence of D’s conduct.
Second, an event does not generally occur absent negligence if more probably than not, it was the result of negligence. Here, [x injury] was more probably than not the result of negligence because [facts].
Third, P can also prove that [x incident] would occur due to someone who, like D, is a [y] because [z].
Fourth, there [are/are not any] facts that indicate P was negligent.

Thus, a jury can infer that D breached a duty of care to P.

Question 44

Breach counter argument res ipsa loquitor

Answer 44

D will argue that res ipsa loquitur does not apply because [x facts]. However, this argument will likely fail because [y]. Therefore, a

Question 45

Breach Negligence Per Se

Answer 45

Because P can prove negligence per se, a jury must find that D breached that duty because he did [x].

Question 46

Breach counter argument

Answer 46

D may argue there is no breach due to [x facts].

Question 47

Breach conclusion

Answer 47

Therefore, a jury will likely find that D breached his duty to P.

Question 48

Actual Causation General

Answer 48

P must prove D’s breach was the actual cause of the harm.

Question 49

Actual Causation But For

Answer 49

D was the actual cause of P’s harm because but for [x actions], [y harm] would not have occurred.

Question 50

Actual Causation Lost Chance Doctrine

Answer 50

Underthe “lost chance doctrine”, D is the actual cause of P’s harm because but for D’s negligent behavior, P’s chance of survival would have been x% instead of y%.

Question 51

Actual Causation Concurrent causes

Answer 51

Under the concurrent cause test, D is the actual cause of P’s harm because his negligent conduct combined with the negligent conduct of Y to cause [the harm]. Since neither conduct alone would have caused the harm, P and Y will be jointly liable unless they can prove what portion of the harm each caused.

Question 52

Actual Causation Successive events

Answer 52

D’s negligent action of D, caused X to do Y, which caused Z harm. D was the “but for” cause of P’s injury because his negligent conduct set off a chain of events that injured P, which would not have occurred absent his negligence.

Question 53

Actual Causation Substantial Factor

Answer 53

Under the ‘‘substantial factor’’ rule of causation, a defendant’s conduct is a cause of a particular consequence if it was a substantial factor in P’s harm. Conduct is a substantial factor in P’s harm if the conduct was sufficient to cause the harm absent any other factors.
Here [x] and [y] occurred and [z] facts indicate each would have been sufficient to cause the harm. Therefore, a jury will likely find that x’s breach is the actual cause of the harm.

Question 54

Actual Causation alternative causes

Answer 54

Because multiple actors were involved, and D cannot prove which one caused her harm, D and [others] will be found to be the actual cause of D’s harm if she can prove that one of them had to be the actual cause. In this case, the burden shifts to D to prove he was not the actual cause.

Question 55

Actual causation counter argument alternative causes

Answer 55

D will argue he was not the actual cause of the harm because [y facts].

Question 56

Actual causation conclusion

Answer 56

Therefore, a jury will likely find D’s breach to be the actual cause of P’s harm.

Question 57

Proximate causation general

Answer 57

D’s negligence is the proximate cause of P’s harm if the type of harm was reasonably foreseeable. Here, [x harm] was reasonably foreseeable because [y].

Question 58

Proximate causation intervening causes

Answer 58

D is also the proximate cause of harm caused by reasonably foreseeable intervening events

An intervening cause is reasonbly foreseeable if D should have foreseen the possibility that the intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable.

Here, the intervening cause was foreseeable because [x facts].

Question 59

Proximate causation negligent medical care

Answer 59

Negligent medical care is generally reasonably foreseeable. Here, because D did [x] which caused P to need medical care, D is liable for [x harm] caused by that medical care.

Question 60

Proximate causation negligent resuce

Answer 60

Negligent recuse is generally reasonably foreseeable. Here, because D did [x] which caused Y to [attempt rescue], D is liable for [x harm] caused by Y’s negligent actions.

Question 61

Proximate causation disease or subsequent accident

Answer 61

It is reasonably foreseeable that P may develop subsequent medical issues or have accidents related to the initial harm. Here, D is the proximate cause of [x harm] because it was reasonably foreseeable [x] could occur due to [y facts].

Question 62

Proximate causation negligence of other drivers

Answer 62

The negligence of other drivers is reasonably foreseeable. Here, because D did [x] which caused [y], d is liable for the reasonably foreseeable harm caused by Y’s negligent actions.

Question 63

Proximate causation reaction forces

Answer 63

It is reasonably foreseeable that others may act negligently in reaction to D’s negligence. Here, X did Y in reaction to [D’s conduct of z], which caused P’s harm of W. Thus, D is the proximate cause of W.

Question 64

Proximate cause foreseeable acts of God

Answer 64

D is liable for subsequent harm to P caused by foreseeable acts of God. Here, it was reasonably foreseeable [x act of God] would occur because of [y].

Question 65

Proximate cause foreseeable criminal or torious acts

Answer 65

D is liable for subsequent harm to P caused by foreseeable criminal acts. Here, it was reasonably foreseeable [x crime] could occur because of [y].

Question 66

Proximate cause superseding events

Answer 66

D is not liable for harm caused by unforeseeable intervening causes.

Question 67

Proximate cause unforeseeable acts of God

Answer 67

D is not liable for harm caused by unforeseeable acts of God. Here it was not reasonably foreseeable [x act of God] would occur because of [y].

Question 68

Proximate cause unforeseeable criminal or tortious acts

Answer 68

D is not liable for harm caused by unforeseeable criminal or tortious acts of others. Here, it was not reasonably foreseeable that [x] would occur because of [y].

Question 69

Proximate cause unforeseeable harm in general

Answer 69

It was not reasonably foreseeable that [x] would if D did [y negligent act] because [z].

Question 70

Proximate cause counterclaim

Answer 70

D will argue he is not the proximate cause of [x harm] because of [y].

Question 71

Proximate Cause Conclusion

Answer 71

Therefore, a jury will likely find that D is the proximate cause of P’s harm.

Question 72

Harm general

Answer 72

P must prove she suffered harm. Harm includes physical impairment of P’s body or property.
Here, P suffered physical impairment of her [body/property] because.

Question 73

Harm Lost Chance Doctrine

Answer 73

If the jurisdiction has adopted the Lost Chance Doctrine, harm includes a loss in chance of survival. Here, P’s harm is the loss of chance of life from x to y.

Question 74

Harm duty to mitigate

Answer 74

P has a duty to mitigate damages and cannot recover for harm that could have been avoided. Here, P did not do [x], so D is not liable for [y harm].

Question 75

Harm eggshell skull

Answer 75

Foreseeability of the extent of the harm is not required. P can recover for all harm sustained even though [x facts] made her harm greater than that of an ordinary person.

Question 76

Harm Impact rule

Answer 76

P can recover for her emotional distress because D’s negligence caused emotional harm.

Question 77

Harm NEID zone of danger

Answer 77

P can recover for NIED if D was negligent, P was in the zone of danger, and P suffered severe emotional distress that manifest in physical symptoms. Here D was negligent as discussed previously, P was in the zone of danger because of [x], and she suffered [y distress and physical symptoms].

Question 78

Harm NEID Bystander rule

Answer 78

P can recover for NIED if P contemporaneously perceived a negligent injury, the victim was a close relative of P and P suffered physical symptoms as a result of severe emotional distress. Here, P contemporaneously perceived [x negligence of D] because [z], the victim was P’s [y relative], and she suffered [y distress and physical symptoms].

Question 79

Defenses - P’s negligence

Answer 79

D may argue that P’s negligence contributed to her harm. He will say P breached her duty to protect herself from reasonable harm when she did [x]. He will say she is the actual cause of her harm because “but for” [x], the harm would not have occurred. He will also say she is the proximate cause of her harm because it was reasonably foreseeable [y] would happen if she did [x].

Question 80

Defenses - P’s negligence counter general

Answer 80

P will argue that she was not negligent because of [z].

Question 81

Defenses -P’s negligence counter duty to protect

Answer 81

P will argue that her negligence is irrelevant because since [x relationship existed], D had a lawful duty to to protect P from her own negligience. Therefore, this defense will fail.

Question 82

Defenses Contributory negligence

Answer 82

In a contributory negligence jurisdiction, P’s negligence would bar her from recovering any damages from D.

Question 83

Defenses - P’s negligence counter - recklessnesses

Answer 83

P will argue that contributory negligence does not apply because D’s conduct was reckless. D had a conscious disregard of a serious, unreasonable risk when he did x because of y. Therefore, D’s defense will fail.

Question 84

Defenses - P’s negligence counter - last clear chance

Answer 84

P will argue that D had the last clear chance to prevent the injury if he had exercised reasonable care. She will prove this by showing that if D had done x instead of y, the accident would not have occurred. Therefore, D’s defense will fail.

Question 85

Defenses Comparative negligence

Answer 85

In a comparative negligence jurisdiction, the jury would determine the percentage of fault of both P and D. If using pure comparative fault, P would only be able to recover for the percentage of harm caused by D. If using modified comparative fault, P would only be able to recover for the percentage of harm caused by D if her percentage is not greater than 50 or 51% depending on the jurisdiction.

Question 86

Defenses - criminal activity

Answer 86

D will argue that contributory negligence or comparative fault should bar or diminish recovery because P committed the crime of x when she was injured. Therefore, a court will likely find that P cannot recover from D.

Question 87

Defenses Express assumption of the risk

Answer 87

D will raise a defense of Express assumption of the risk, stating P knew the risks and agreed [orally or in writing] to proceed in face of the risk as shown by [x]. [Y facts] show P knew of the risks and voluntarily agreed to proceed.

Question 88

Defenses Express assumption of the risk counter

Answer 88

P will argue this defense is not valid because [x risk] was not unambiguously in the scope of the contract. Therefore, this defense will fail.

Question 89

Defenses Primary assumption of the risk

Answer 89

D will likely raise primary assumption of the risk as a defense, stating P knowingly and voluntarily participated in x activity that had inherent risks. D will state P implied assumption of the risk because y.

Question 90

Defenses Primary assumption of the risk counter

Answer 90

P will argue primary assumption of the risk does not apply because she did not have knowledge of the risks as proven by x. Therefore, this defense will fail.

Question 91

Defenses Primary assumption counter increased risk

Answer 91

P will argue primary assumption of the risk does not apply because D’s negligent behavior of x increased the risk because y. Therefore, this defense will likely fail.

Question 92

Defenses Secondary assumption of the risk

Answer 92

D will rasie a defense of secondary assumption of the risk, stating that even though his negligent conduct of x created a risk, P appreciated the existence and nature of the risk but proceeded anyway.

Question 93

Defenses Secondary assumption counter

Answer 93

P will argue that she did not appreciate the risk because of x. Therefore, this defense will likely fail.