Negligence: Duty, Breach, Causation Flashcards
Causation requires…?
Cause in fact (actual cause)
Proximate cause (legal cause)
Duty is a ____ obligation to act in a certain way
Legal
Is there a duty or not?
What is the standard of care owed?
True or false: there is no duty to act affirmatively, even if the failure to act appears to be unreasonable
True
Duty of care is owed to whom?
All persons who could foreseeably be injured by D’s course of conduct
Foreseeability of harm: what are the the majority and minority views?
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
True or false: a person who comes to the aid of another is a foreseeable victim
True. Danger causes rescue
What are the exceptions to (no) affirmative duty rule?
- Assumption of a duty – voluntarily undertaking
+ duty of reasonable care in performing aid - Placing another in danger
- By authority
- Special relationship
+ reasonable care to aid or assist and prevent reasonably foreseeable injuries
What standard of care do people with physical disabilities have?
Modified – compare D with reasonably prudent person with like characteristics
What standard of care do intoxicated people have?
Objective – same standards as sober people UNLESS intoxication was involuntary
What standard of care are children held to
Modified – reasonable child of similar intelligence/experience
EXCEPT if engaging in adult like activities – objective
What standard of care are common carriers and innkeepers held to?
Utmost care – higher standard
Modern trend- liable only for ordinary negligence (not a higher standard)
What standard of care do automobile drivers owe?
Most jurisdictions apply general duty of reasonable care
What are the two approaches to standard of care re: maintenance of property
- Tripartite: depends on status of entrant
Invitee (high) –> licensee (intermediate) –> trespasser (low) - Modern/California: reasonable standard of care towards everyone, with status of entrant relevant
What is a landowner’s duty towards trespassers?
Generally: Avoid willful, wanton, intentional, reckless misconduct
+ no duty to undiscovered trespassers
+ discovered or anticipated trespassers from hidden dangers
Explain the attractive nuisance doctrine
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
What is a landowners duty towards licensees?
Make the property as safe as you’d like for yourself: warn of concealed dangers
No duty to inspect for dangers
What is a landowner’s duty towards invitees?
Inspection, take reasonable steps to protect/remedy
non-delegable duty
true or false: tenants are not liable for injuries arising from conditions within their control
False
Define breach
Violation of the relevant standard of care
The reasonable person standard for breach focuses on what…?
Common sense approach of what the reasonably prudent person would do under the circumstances
The Hand Formula is…?
B < PL
Burden v. Probability of harm x severity of loss
How costly would that have been to do to mitigate?
True or false: generally, evidence of custom is admissible but not dispositive
True, EXCEPT for professionals (admissible and dispositive)
How does a jury determine a custom for a physician?
- Traditional rule: same or similar locality
- Modern: national standard
- Informed consent – patients must give informed consent
True or false: Unexcused statutory violations constitutes negligence per se
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
_____ counts as comparative or contributory negligence
Violation of statute by plaintiff
Contributory negligence = complete bar to recovery
True or false: compliance with a statute constitutes reasonable care
False. Generally, does not mean a person was NOT negligent
What are defenses for violating a statute?
- compliance would be more dangerous
- compliance was impossible
- emergency justified violation
- Incapacity
- Exercised reasonable care in trying to comply
- Vagueness
Define res ipsa loquitur
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
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)
True, California is a jurisdiction who applies this
The “but for” test is used to show —?
Actual cause.
But for the breach committed by D, the injury would not have occurred
What are the different ways in which but for causation can be problematic?
- Multiple tortfeasors
- Multiple possible causes
- loss of chance
When does the substantial factor test come into play?
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
When does alternative causation come into play?
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.
Explain loss of chance of recovery
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
What are factors that affect proximate cause?
- Outside the scope of liability
- Foreseeability of the harm
- Intervening/Superseding cause
- Extent of damages
