Negligence: Breach, Causation, Defenses Flashcards
Majority of jurisdictions regarding negligence per se (including NC)
If a defendant violates a statute that is designed to protect against the type of harm caused by defendant’s conduct, and the plaintiff is someone the statute is designed to protect.
-When judge determines statute applies to the facts, an unexcused violation is negligence per se (not left to the jury to decide)
-Minority of jurisdictions: violation of a statute is only evidence of negligence, which the jury may reject or accept as it sees fit
Exceptions that will ALWAYS be negligence per se
breach due to (1) electrical fire safety, (2) use of smoke alarms, (3) sterilization of needles and instruments relating to body art or other precautions against the spread of disease or (4) driving under the influence = NEGLIGENCE PER SE (not just evidence).
Rebuttable presumption
violation of a statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by defendant providing adequate excuse under the facts and circumstances (nurse walking on road because sidewalk was icy despite statute that it’s unlawful to walk on road)
When is circumstantial evidence enough to get to the jury (proof of breach)?
When circumstantial evidence shows defendant knows or should’ve known of unsafe condition, then you should have a question for the jury. If evidence doesn’t show likelihood of knowledge, it’s not good enough to get to the jury.
Res Ipsa Loquitor (rule statement)
- An injurious event
- That likely wouldn’t occur without negligence
- The event is connected to the defendant because the defendant had a duty to exercise reasonable care with respect to the injurious event (usually) because the harm-causing instrumentality was under the defendant’s exclusive control
Factual cause
measures whether defendant’s conduct in fact did or did not cause plaintiff’s harm
Proximate cause
Defendant is liable for harms foreseeably risked by negligent conduct to the class of persons put at risk by that conduct, but he is not liable for the injuries that were unforeseeable
Substantial factor
Once a party comes forward with evidence sufficient to establish a factual cause, the defendant can’t rely on “mere possibilities” once the plaintiff already established a substantial factor (Reynolds case—stating big lady could’ve fallen down the stairs regardless isn’t enough to break the causal chain)
Loss of chance
doesn’t prove medical malpractice caused injury, but rather that it reduced the chance of a better outcome. 3 different ways to approach this:
a. Majority: viewing patient’s injury as the loss of the opportunity for a better outcome plaintiff can collect proportionate damages
b. Minority 1: recover as long as the lost chance was a substantial factor in producing the harm plaintiff can collect full damages
c. Minority 2: continue to require traditional causation requirement not on chance and mere possibility
What must plaintiff prove in malpractice cause-in-fact?
Plaintiff must show that judgment could’ve been collectible (doctor carries malpractice insurance)
Burden of proof –> cases in which the plaintiff underwent surgery
-Majority of jurisdiction follow wire case (James v. Wormuth): plaintiff must prove that defendant was in exclusive control of the operation and “bad thing” must’ve been done unintentionally
-Minority exception of burden of proof in regard to plaintiffs in surgery (after Ybarra): burden shifts to defendants regarding patients undergoing surgery
Concurrent causes (when two or more negligent actions combine to cause a single harm)
“Neither alone” could’ve caused the incident
i. Hill v. Edmonds: car parked in middle of highway crashed into by other speeding car
“Either alone” could’ve caused the incident
i. Anderson v. Minneapolis: even though either fire could’ve destroyed plaintiff’s property, there’s joint liability.
ii. Two or more actively operating forces combine to bring about the harm, while each alone would’ve been sufficient to bring about the harm
iii. Jointly and severally liable plaintiff gets to choose who to collect damages from
What to ask regarding proximate cause?
- What was the defendant’s conduct?
- What kinds of harms are foreseeable from that conduct?
- What’s the harm that operated the harm for which plaintiff seeks relief?
- Is the answer to question 2 the same as the answer to question 3?
- What proximate cause principle justifies or explains that answer (yes or no)? e.g., “eggshell skull” principle
“Eggshell skull” principle
All states agree that when unforeseeable consequences follow from a physical injury to the person of the plaintiff, and the defendant’s tortious conduct caused the harm, the actor is liable despite pre-existing physical and medical conditions or other characteristics
NOTE: applies only to proximate cause cases
Intervening suicide
Most jurisdictions view suicide as an intervening, intentional act that breaks the chain of causation, but some courts permit recovery to decedent’s estate caused by an irresistible impulse to commit suicide (planning and other evidence indicating “calm” negates “irresistible impulse” doctrine)
