Negligence - rules Flashcards
Negligence is assessed by weighing
the probability and severity of harm to all potential victims against the cost of precautions.
In a negligence action, to determine if a plaintiff’s suggested alternative course of conduct is reasonable, most courts engage in an equitable balancing of three factors. Factor 1 is:
Those factors are: (1) the probability that harm would result from the defendant’s conduct,
In a negligence action, to determine if a plaintiff’s suggested alternative course of conduct is reasonable, most courts engage in an equitable balancing of three factors. Factor 2 is:
(2) the severity of potential harm from the defendant’s conduct,
In a negligence action, to determine if a plaintiff’s suggested alternative course of conduct is reasonable, most courts engage in an equitable balancing of three factors. Factor 3 is:
and (3) the burden or cost that the defendant (and society at large) would have incurred if the defendant had taken the plaintiff’s proposed alternative course of conduct. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
The majority of jurisdictions apply the foreseeable-plaintiff rule. A defendant owes…
A defendant owes a duty of care only to those plaintiffs who are foreseeably at risk of harm as a result of the defendant’s actions.
Under the foreseeable-plaintiff rule, the actor owes…
Under the foreseeable-plaintiff rule, the actor owes a duty of care to only those people that the actor can reasonably foresee hurting.
Proximate causation means that the general type of harm
Proximate causation means that the general type of harm the victim suffered was a reasonably foreseeable result of the actor’s breach of duty.
Very often, external forces will combine with the actor’s negligence and contribute to the injury. These external forces are called…
These external forces are called intervening forces.
If an intervening force is unforeseeable, then it might become…
If an intervening force is unforeseeable, then it might become a superseding force that defeats proximate causation and absolves the actor of liability. However, the intervening negligence of third parties is virtually always deemed a foreseeable intervening force that will not defeat proximate causation.
One of the elements of an ordinary negligence claim is actual causation, or whether the defendant actually caused the plaintiff’s injury. If one of multiple defendants negligently caused an injury to a plaintiff, but the plaintiff is unable to prove which defendant was the negligent one who actually caused the plaintiff’s injury,
One of the elements of an ordinary negligence claim is actual causation, or whether the defendant actually caused the plaintiff’s injury. If one of multiple defendants negligently caused an injury to a plaintiff, but the plaintiff is unable to prove which defendant was the negligent one who actually caused the plaintiff’s injury, then courts typically use the alternative-causes test to determine actual causation.
Under the alternative-causes doctrine, the plaintiff is required to prove only that
Under the alternative-causes doctrine, the plaintiff is required to prove only that one of the multiple defendants must have caused the injury; then the court will consider all the potentially responsible defendants an actual cause of the injury unless and until any of the defendants can prove that his or her actions did not in fact cause the injury.
Under the alternative-causes doctrine, the plaintiff is required to prove only that one of the multiple defendants must have caused the injury; then the court will consider all the potentially responsible defendants an actual cause of the injury unless and until
Under the alternative-causes doctrine, the plaintiff is required to prove only that one of the multiple defendants must have caused the injury; then the court will consider all the potentially responsible defendants an actual cause of the injury unless and until any of the defendants can prove that his or her actions did not in fact cause the injury.
the court will apply the concurrent-causes test. Under that test, because each of the actors performed a negligent act that contributed to the explosion happening, all the actors will be considered
the court will apply the concurrent-causes test. Under that test, because each of the actors performed a negligent act that contributed to the explosion happening, all the actors will be considered an actual cause of the resulting injuries and property damage.
Why is the employer not liable under respondeat superior or vicarious liability: An employer gave its employee permission to temporarily leave work in order to deposit his paycheck. While the employee was driving from his office to the bank, he got into a car accident with another motorist.
because the employee’s actions did not serve any purpose of the employer.
An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.” Restatement (Third) of Agency § 7.07(2) (2006).
Nothing in the fact pattern indicates that the employee’s actions served the employer’s interests in any way. Therefore, the employer will not be liable under a theory of respondeat superior.
A frolic occurs when an employee significantly deviates from their work duties to engage in activities that are __________ __________ and _____________ to the employer’s interests.
A frolic occurs when an employee significantly deviates from their work duties to engage in activities that are entirely personal and unrelated to the employer’s interests.
To hold an employer liable under respondeat superior, the worker’s conduct must:
Be within the scope of their employment,
Be performed to benefit the employer, and
Be related to their job duties or furthering the employer’s business.
Smoking a cigarette during a break is
generally a personal activity
and not one performed for the benefit of the employer.
While breaks may be allowed as part of the job, activities conducted during a break are typically considered outside the scope of employment unless they directly relate to the worker’s duties.
Florida adopted a modified comparative fault rule effective March 24, 2023, under House Bill 837.
Key Rule:
A plaintiff may only recover damages if their percentage of fault is less than
Florida adopted a modified comparative fault rule effective March 24, 2023, under House Bill 837.
Key Rule:
A plaintiff may only recover damages if their percentage of fault is less than 50%.
If the plaintiff is 50% or more at fault, they are barred from recovering damages.
This is often referred to as the “51% bar rule” (or the “greater-than-50% bar”).
She contended that had the man been driving the speed limit, his car would not have been located under the tree branch at the exact moment it broke and fell.
the branch’s falling was quite arguably an unforeseeable intervening cause that defeats proximate causation and absolves the actor of liability.
Failure to Answer Timely: This is not a substantive defense;
Failure to Answer Timely: This is not a substantive defense; it’s a procedural issue. If a defendant fails to answer within the required time, the plaintiff can seek a default judgment against the defendant. The defendant’s remedy would typically involve seeking to set aside the default for excusable neglect under Rule 1.540, rather than raising it as a defense in a pleading or motion.
- Alignment with Federal “No Genuine Dispute of Material Fact” Standard
Before the Amendment: Florida courts applied a stricter standard, requiring the moving party to conclusively disprove the opposing party’s case.
- Alignment with Federal “No Genuine Dispute of Material Fact” Standard
Before the Amendment: Florida courts applied a stricter standard, requiring the moving party to conclusively disprove the opposing party’s case. If any evidence, no matter how minor or speculative, suggested a factual dispute, summary judgment was denied.
- Alignment with Federal “No Genuine Dispute of Material Fact” Standard
After the Amendment: Florida adopted the federal standard, which asks whether the evidence shows a
genuine dispute of material fact. If no reasonable jury could find in favor of the non-moving party, summary judgment is appropriate.
Federal Test: A factual dispute is only “genuine” if a reasonable jury could return a verdict for the non-moving party.
This change makes it easier to obtain summary judgment in Florida.
Before: The moving party bore the burden of disproving the opponent’s claims or defenses conclusively.
After: The moving party now only needs to show that the opposing party lacks sufficient evidence to prove an essential element of their case.
Once this burden is met, the non-moving party must present specific evidence showing a genuine issue of material fact to avoid summary judgment.
The landowner’s duty to a licensee is primarily a duty to warn of known dangers that the licensee cannot reasonably be expected to discover on their own. This contrasts with the higher duty owed to invitees, which
includes inspecting and repairing dangerous conditions.
