Negligence ("The Neg")

Question 1

Name the four elements of negligence

Answer 1

1. Duty
2. Breach
3. Causation
4. Harm

Question 2

Define negligence

Answer 2

Negligence is the failure to exercise care a reasonable person would exercise. Negligence can also seen as the breach of the duty to prevent foreseeable risk of harm to anyone in the plaintiff’s position.
The breach must be the cause of the plaintiff’s injuries.

Question 3

Define the element of duty

Answer 3

Duty is the obligation to protect another against unreasonable risk of injury

Question 4

Define the element of breach

Answer 4

Breach is the failure to meet the duty

Question 5

To whom is the duty owed?

Answer 5

Duty is owed to all foreseeable persons who may be injured by the defendant’s failure to meet a reasonable standard of care

Question 6

What is the Cardozo (majority) rule as to foreseeability of harm to the plaintiff?

Answer 6

Cardozo rule: Defendant is only liable to plaintiffs within the zone of foreseeable harm

Question 7

What is the Andrews (minority) rule as to foreseeability of harm to the plaintiff?

Answer 7

Andrews rule: If the defendant can foresee harm to anyone resulting from his negligence, the defendant then owes a duty to everyone harmed

Question 8

Is there a duty to act?

Answer 8

In general, there is no duty to act. However, foreseeability of harm to another can be sufficient to create general duty to act with reasonable care.

Question 9

Who are special foreseeable plaintiffs?

Answer 9

Rescuers–defendant is liable for negligently putting rescuer/rescued party in danger.*/**
Fetuses–duty of care is owed to fetuses who are viable at time of injury
*Can apply comparative responsibility if rescuer’s efforts are unreasonable
**Emergency professional are barred from recover if injury results from risk inherent in the job

Question 10

What is the “firefighter’s rule”?

Answer 10

Emergency professional are barred from recover if injury results from risk inherent in the job.

Question 11

Name the exceptions to the general rule, when there is an affirmative duty to act?

Answer 11

Generally, there is no duty to act, but some exceptions apply:

1. Assumption of duty
2. Placing another in peril
3. By contract
4. By authority
5. By relationship (e.g., employer-employee, parent-child)

Question 12

What is the standard of care? Is it objective or subjective?

Answer 12

Reasonably prudent person–objective standard

Question 13

Are physical or mental characteristics taken into account in determining reasonableness?

Answer 13

Physical, but not mental, characteristics are taken into account.

Question 14

To what standard of care is a voluntarily intoxicated person held?

Answer 14

A voluntarily intoxicated person is held to the same standard as a sober person.

Question 15

To what standard of care is a child held?

Answer 15

Reasonable child of similar age, intelligence, and experience

Question 16

When will a child be held to an adult standard of care?

Answer 16

When the child is engaged in adult activity (e.g., driving a car)

Question 17

Which three factors are considered in determining negligence under the cost-benefit analysis? (BPL)

Answer 17

1. (Burden) D’s burden in avoiding the harm
2. (Probability) Foreseeable likelihood that D’s conduct would cause harm
3. (Loss) Foreseeable severity of the harm

Question 18

To what standard of care are professional held?

Answer 18

Expected to show same skill, knowledge, and care as other practitioners in the same community. Specialists may be held to higher standard of care.

Question 19

To what standard are physicians held?

Answer 19

National standard = average qualified practitioner

Question 20

When is failure to secure informed consent not negligent? (4 situations)

Answer 20

Failure to comply with informed consent requirements is medical negligence (malpractice) unless:

1. Risk is commonly known;
2. Patient is unconscious;
3. Patient waives or is incompetent; or
4. Disclosure is too harmful

Question 21

How is custom evidence treated in establishing a standard of care?

Answer 21

Evidence of custom is admissible but not conclusive in establishing proper standard of care (cause the whole industry could be negligent!)

Question 22

What are the (five) elements of negligence per se?

Answer 22

1. A criminal or regulatory statute imposes a specific duty for protection of others;
2. D neglects to perform that duty
3. D is liable to anyone in the class of people intended to be protected
4. For harms of the type the statute was intended to protect against
5. That were proximately caused by D’s violation

Question 23

Name two defenses to negligence per se

Answer 23

1. Compliance with the statute was impossible

2. Violation was reasonable under the circumstances