Negligence - Breach, Causation

Question 1

What is a Breach of Duty?

Answer 1

Where ▵’s conduct fails to conform to the applic. std. of care

• Failure to act as a reasonable person
• An unexcused violation of statute
• Res Ipsa Loquitur (where no direct evidence)

Question 2

What is the traditional approach indetermining if a breach of duty occured?

Answer 2

By comparing the D’s conduct with what a reas. prudent pers. under the circ. would or would not have done (Objective std.)

Question 3

What is the modern trend in determining if there was a breach of the duty of care?

Answer 3

Cost-Benefit Analysis - the following factors are considered in determining if the D has acted in accordance with the std. of care:

1. The foreseeable likelihood that the D’s conduct would cause harm
2. The foreseeable severity of any resulting harm AND
3. The D’s burden (costs or other disadvantages) in avoiding the harm

Question 4

What burden must a plaintiff satisfy in proving breach of duty?

Answer 4

Plaintiff must prove every element by the preponderance of the evidence

Question 5

What is the preponderance of the evidence standard?

Answer 5

More likely than not

• Greater than 50%

Question 6

What 2 types of evidence can show a breach of duty?

Answer 6

1. Direct Evidence - eyewitness or videotape of the accident
2. Circumstantial Evidence - Ev. from which one can draw a reas. infeence

Question 7

Define Res Ipsa Loquitur

Answer 7

The thing speaks for itself

Question 8

When is res ipsa loquitor applicable ?

Answer 8

Arises when Plaintiff can’t identify exactly what the D did that was wrong (no direct evidence)

• BUT the event could only occur through the Defendant’s negligence

Question 9

What are the Elements of Res Ipsa Loquitur?

Answer 9

Applies only where a lay jury could say that the accident would not ordinarily occur in the absence of the ▵’s negligence

1. No Direct Evidence as to the ▵’s precise conduct
2. Accident Normally Does Not Occur w/out Negligence by Someone in ▵’s position AND
3. Instrument that inflicted the injury was w/in ▵’s Exclusive Control

▵ must be the most likely pers. whose. neg. would have caused the accident

Question 10

What is the result of the Doctrine of Res Ipsa Loquitour ?

Answer 10

∏ is treated as having produced enough ev. of the ▵’s neg. to get the case to the jury (no directed verdict for ▵)

• ▵ can rebut this evidence
• Jury is free to reject the res ipsa loquitur inference

Question 11

What is cause in Fact ?

Answer 11

Link b/w defendant’s breach of duty of care and plaintiff’s injury

Question 12

What is the default test to prove the element of cause in fact?

Answer 12

But For Test

• But for the brach of duty by the D, the P wouldn’t have been injured

Question 13

What are the 3 areas where cause in fact is not evaluated through the but for test?

Answer 13

1. Multiple Causes
2. Loss of Chance
3. Alternative Causes

Question 14

When there are multiple causes contributing to a Plaintiff’s injury, what test is used to prove the element of cause in fact?

Answer 14

Substantial Factor Test - D liable if their negligence was a subst. factor in the plaintiff’s injury

• Where 2 concurrent causes,
• each of which could have been sufficient by itself to cause the injury to ∏
• So long as one of the causes was subst. factor in bringing about ∏’s injury, it is the cause in fact

Question 15

Substantial Factor Test - What if both causes are found to be substantial factors?

Answer 15

Both Causes found to be Substantial Factors = ▵s will be jointly liable

Question 16

Cause in Fact - Concert of Action

Answer 16

All Defendants will be jointly & severly liabile if:

1. If 2 or more tortfeasors were acting pursuant to a common plan or design AND
2. The acts of one or more of them tortiously caused the P’s harm

Question 17

When does loss of chance apply?

Answer 17

It must be integrated specifically by statute

• Usually applies in med. malpractice cases
• When P can’t meet preponderance of the ev. std. for causation (more likely than not)
  
  • b/c chance of recovery was already less then 50% b/f D’s negligent conduct

Question 18

When loss of chance applies, what are a plaintiff’s damages?

Answer 18

P can recover reduced damages

• Measured by:
  
  • an amount equal to the total damages recoverable as a result of the death
  • multiplied by the difference in the percentage chance of recovery b/f neg. misdiagnosis & after the misdiagnosis

The loss of X% chance of survival if not but for defendant’s negligence

Question 19

When does the alternative liability theory apply to prove cause in fact?

Answer 19

Where there are multiple causes but neither are sufficient by tiself to cause P’s injury

• Both causes are considered CIF

Question 20

What is the effect if alternative liability theory applies to prove cause in fact against the defendants at issue?

Answer 20

Burden shifts to the defendant to show that they were not the cause

• If D can’t do so, then they will e jointly & severally liable

Question 21

What does proximate cause ask?

Answer 21

Is there a reason to limit the extent of liability due to?

• Was harm to plaintiff foreseeable? OR
• Was it brought about by some extraordinary or unforeseeable sequence of events ?

Question 22

Proximate Cause - What is the Majority Rule ?

Answer 22

D is liable for reasonably fores. consequences resulting from his conduct

• Type of harm must be foreseeable
• Extent of harm doesn’t need to be foreseeable

Question 23

Proximate Cause - Minority Rule

Answer 23

Prox. cause is found for all consequences that flow directly from the defendant’s conduct

• Considers:
  
  • Number of intervening causes AND
  • Remoteness of the cause from the effect

Other courts find prox. cause if Ds conduct was direct cause of P’s injury regardless of foreseeability

Question 24

What is Defendant’s liability if the manner of the harm was unforeseeable?

Answer 24

If there was a superseding cause, then there is no liability for the defendant

Question 25

When is an intervening cause superseding?

Answer 25

When it is highly unforeseeable, freakish, bizarre and highly culpable

Question 26

Proximate Cause - Direct Cause

Answer 26

P can recover when D’s tortious acts are the direct cause of plaintiff’s harm withou the intervention of independent contributing acts

Question 27

Proximate Cause - What is an Indirect Cause

Answer 27

Indirect Cause

• Results from an act or event occuring after D’s tortious act & b/f plaintiff’s injury (intervening event)

Question 28

What is a superseding cause?

Answer 28

An unforeseeable, intervening cause that breaks the chain of causation b/w the initial wrongful act & the ultimate injury

• Relieves Defendant of any liability

Question 29

Proximate Cause - Negligent Intervening acts

Answer 29

Are foreseable

• Don’t prevent original D from being held liable to the P

Question 30

Proximate Cause - Unforeseeable Intervening Causes

Answer 30

Is a superseding cause

• Breaks the chain of causation b/w D & P
• Include unforeseeable acts of nature, criminal acts/intentional torts by 3d parties

Question 31

Proximate Cause - Extent of Damages

Answer 31

Thin Skull Rule

• The extent of damages doesn’t need to be foreseeable
• D liable for the full extent of the plaintiff’s injuries that may be increased b/c of P’s preexisting med. conditon or vulnerability

Question 32

Whether a defendant has breached his duty to the P is a question of fact to be determined by who?

Answer 32

Trier of Fact

Question 33

Can a resuer be a superseding cause?

Answer 33

No, because they are always foreseeable

Question 34

What is the effect of res ipsa loquitur

Answer 34

It gives an inference of negligence

Question 35

Will establishing res ipsa loquitur support a judgment for damages ?

Answer 35

No, the jury must still determine that the defendant was actually negligent