Negligence: Duty, Breach, Causation

Question 1

Causation requires…?

Answer 1

Cause in fact (actual cause)
Proximate cause (legal cause)

Question 2

Duty is a ____ obligation to act in a certain way

Answer 2

Legal

Is there a duty or not?
What is the standard of care owed?

Question 3

True or false: there is no duty to act affirmatively, even if the failure to act appears to be unreasonable

Answer 3

True

Question 4

Duty of care is owed to whom?

Answer 4

All persons who could foreseeably be injured by D’s course of conduct

Question 5

Foreseeability of harm: what are the the majority and minority views?

Answer 5

Majority: Cardozo
+ Duty owed to plaintiff only if plaintiff is a member of the class of persons who might be foreseeably harmed

Minority: Restatement/Andrews
+ anytime conduct could harm someone, there is a duty to everyone
+ Whether this P was foreseeable is a proximate cause issue

Question 6

True or false: a person who comes to the aid of another is a foreseeable victim

Answer 6

True. Danger causes rescue

Question 7

What are the exceptions to (no) affirmative duty rule?

Answer 7

1. Assumption of a duty – voluntarily undertaking
   + duty of reasonable care in performing aid
2. Placing another in danger
3. By authority
4. Special relationship
   + reasonable care to aid or assist and prevent reasonably foreseeable injuries

Question 8

What standard of care do people with physical disabilities have?

Answer 8

Modified – compare D with reasonably prudent person with like characteristics

Question 9

What standard of care do intoxicated people have?

Answer 9

Objective – same standards as sober people UNLESS intoxication was involuntary

Question 10

What standard of care are children held to

Answer 10

Modified – reasonable child of similar intelligence/experience

EXCEPT if engaging in adult like activities – objective

Question 11

What standard of care are common carriers and innkeepers held to?

Answer 11

Utmost care – higher standard

Modern trend- liable only for ordinary negligence (not a higher standard)

Question 12

What standard of care do automobile drivers owe?

Answer 12

Most jurisdictions apply general duty of reasonable care

Question 13

What are the two approaches to standard of care re: maintenance of property

Answer 13

1. Tripartite: depends on status of entrant
   Invitee (high) –> licensee (intermediate) –> trespasser (low)
2. Modern/California: reasonable standard of care towards everyone, with status of entrant relevant

Question 14

What is a landowner’s duty towards trespassers?

Answer 14

Generally: Avoid willful, wanton, intentional, reckless misconduct

+ no duty to undiscovered trespassers
+ discovered or anticipated trespassers from hidden dangers

Question 15

Explain the attractive nuisance doctrine

Answer 15

Child trespassers attracted to land by a condition.

+ Artificial
+ Owner knows/has reason to know kids likely to trespass
+ Poses an unreasonable risk of death or GBH
+ Children because of age cannot appreciate danger
+ Maintaining the condition slight compared to risk of injury
+ Land possessor fails to exercise reasonable care

Question 16

What is a landowners duty towards licensees?

Answer 16

Make the property as safe as you’d like for yourself: warn of concealed dangers

No duty to inspect for dangers

Question 17

What is a landowner’s duty towards invitees?

Answer 17

Inspection, take reasonable steps to protect/remedy

non-delegable duty

Question 18

true or false: tenants are not liable for injuries arising from conditions within their control

Answer 18

False

Question 19

Define breach

Answer 19

Violation of the relevant standard of care

Question 20

The reasonable person standard for breach focuses on what…?

Answer 20

Common sense approach of what the reasonably prudent person would do under the circumstances

Question 21

The Hand Formula is…?

Answer 21

B < PL
Burden v. Probability of harm x severity of loss

How costly would that have been to do to mitigate?

Question 22

True or false: generally, evidence of custom is admissible but not dispositive

Answer 22

True, EXCEPT for professionals (admissible and dispositive)

Question 23

How does a jury determine a custom for a physician?

Answer 23

1. Traditional rule: same or similar locality
2. Modern: national standard
3. Informed consent – patients must give informed consent

Question 24

True or false: Unexcused statutory violations constitutes negligence per se

Answer 24

True. “your violation of this statute constitutes breach”

+ Statute imposes duty
+ Violation of statute
+ P is in the lass of people intended to be protected
+ Accident type protected by statute
+ Harm caused by violation

Question 25

_____ counts as comparative or contributory negligence

Answer 25

Violation of statute by plaintiff

Contributory negligence = complete bar to recovery

Question 26

True or false: compliance with a statute constitutes reasonable care

Answer 26

False. Generally, does not mean a person was NOT negligent

Question 27

What are defenses for violating a statute?

Answer 27

1. compliance would be more dangerous
2. compliance was impossible
3. emergency justified violation
4. Incapacity
5. Exercised reasonable care in trying to comply
6. Vagueness

Question 28

Define res ipsa loquitur

Answer 28

The thing speaks for itself – circumstantial evidence is sufficient to prove negligence

+ Accident would not ordinarily occur in absence of negligence
+ caused by an agent or instrumentality within D’s exclusive control
+ Not due to any action on the part of the plaintiff

Question 29

True or false: In medical malpractice, some jurisdictions shift the burden by holding ALL defendants jointly and severally liable unless they can exonerate themselves (if res ipsa is determined)

Answer 29

True, California is a jurisdiction who applies this

Question 30

The “but for” test is used to show —?

Answer 30

Actual cause.

But for the breach committed by D, the injury would not have occurred

Question 31

What are the different ways in which but for causation can be problematic?

Answer 31

1. Multiple tortfeasors
2. Multiple possible causes
3. loss of chance

Question 32

When does the substantial factor test come into play?

Answer 32

Substantial factor: whether the D’s tortious conduct was a substantial factor causing the harm.

Used when there are conceptual problems with causation due to multiple causes

Question 33

When does alternative causation come into play?

Answer 33

Alternative causation: courts shift the burden of proof to Ds, impose joint and several liability on both unless one can show he did not cause the harm

Usually two people caused the harm and each was negligent, but cannot be determined who is to blame.

Question 34

Explain loss of chance of recovery

Answer 34

If a physician negligently reduces plaintiff’s chance of survival, P can recover for the loss chance of recover

+ Patient with less than 50% chance of survival cannot recover
+ Plaintiff cannot recover entire amount of damages, but the portion that represents their lost chance of survival

Question 35

What are factors that affect proximate cause?

Answer 35

1. Outside the scope of liability
2. Foreseeability of the harm
3. Intervening/Superseding cause
4. Extent of damages