Negligence: Causation and Parties Flashcards
COMPARATIVE NEGLIGENCE
Most comparative negligence jurisdictions have adopted a modified or partial form, whereby plaintiff is permitted to recover damages only if her negligence is at or below a threshold level (49% or 50%). A plaintiff entitled to recover will have her damages reduced by the amount of her negligence.
PROXIMATE CAUSE
The general of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In indirect cause cases, an independent intervening force may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff. Even a criminal act by a third party will not cut off the defendant’s liability if the defendant’s negligence created a foreseeable risk that a third person would commit the crime.
PURE COMPARATIVE NEGLIGENCE
Under pure comparative negligence, an injured plaintiff may recover damages from a negligent defendant no matter how great his own negligence was. Under joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, the plaintiff can recover the entire judgment from any defendant. Under the rule of contribution, any defendant required to pay more than her share of damages has a claim against the other jointly liable parties for the excess. In jurisdictions that have adopted a comparative contribution system, nonpaying tortfeasors are required to contribute only in proportion to their relative fault.
PRODUCTS LIABILITY BASED ON NEGLIGENCE
To establish a prima facie case of negligence in a products liability case, the plaintiff must show: (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages. The duty of care arises when the defendant acts as a commercial supplier of products. A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component. To prove breach of duty, the plaintiff must show (i) negligent conduct by the defendant that leads to (ii) the supplying of a defective product.
DUTY TO INSPECT (CAUSATION)
An intermediary’s negligent failure to discover a defect is not a superseding cause, and the defendant who supplied the defective product will be held liable along with the intermediary.
