Page 10 Flashcards
What is the jury’s role in negligence?
To decide if the defendant was acting reasonably
If the plaintiff can’t establish one or more elements of negligence by a preponderance of the evidence, what happens?
Defendant wins
Negligence is liability for what?
Unreasonable risk creation
What does the defendant do in a negligence situation?
Engages in risk creating conduct that leads to personal injury/property damage to a foreseeable P
What is the most frequently tested subject in tort?
Negligence
Does the standard of care for negligence ever change?
No
What is proximate cause for negligence?
Negligence was an event sufficiently related to the injury to be the cause of it, close enough to harm in a chain of events
What is duty for negligence?
Generally you owe a duty to all foreseeable plaintiffs within the zone of danger to act as a reasonably prudent person under the circumstances
Does it make a difference if the defendant believed he was acting in good faith and being careful, to the duty analysis for negligence?
No, all that matters is how a reasonable person of ordinary prudence would’ve acted
How is the duty test for negligence aspirational?
It doesn’t ask what an ordinary person really does, but how he ought to behave under the circumstances
Why should you never tell the jury to ask how they would’ve acted in a negligence suit?
Because they have to act how a reasonable person would’ve acted in those circumstances
The greater the foreseeable risk of harm involved for negligence, the greater the what?
Care required
What is the only element of negligence that is first decided by the judge, and then the other elements are decided by the jury?
Duty
What are the things that the judge decides for duty?
- does D owe a duty of care? If he does….
- what is the scope of the duty?
What are the elements of proximate cause for negligence?
- foreseeability
- zone of danger
What is the foreseeability that is required for proximate cause for negligence?
If the actual consequences of the conduct are so bizarre or far removed from the risks of his negligence, then you shouldn’t be liable for the resulting harm
What does it mean to consider the scope of liability for foreseeability for negligence?
How far the defendant’s liability extends for consequences caused by his negligent acts
What is the zone of danger for proximate cause for negligence?
Duty extends only to a plaintiff that is within the foreseeable zone of danger, so if the person was too much outside of this, it is too remote
What is the defining case for zone of danger for proximate cause for negligence?
Palsgraf
What are the three tests for proximate cause for negligence?
- Foreseeability test
- Directness/remoteness test
- Risk rule
What is the foreseeability test for proximate cause for negligence?
Looks at how foreseeable the injury to the plaintiff was, the type, extent, and manner of injury. If it wasn’t foreseeable, then liability is denied
What is the directness/remoteness test for proximate cause for negligence?
All harm that flows from the defendant’s negligent conduct, regardless of foreseeability, so long as it isn’t too remote, is the proximate cause
What is the risk rule for proximate cause for negligence?
If the risk of what actually happened to the plaintiff was part of what made the defendant’s conduct unreasonable, the defendant is liable for plaintiff’s injury
What were the two major views in the Palsgraf case?
- Andrews’ dissenting broad view
- Cardozo’s narrow view
What was the Andrew’s approach to the Palsgraf case?
Defendant owes a duty to anyone in the world that suffers injuries as a result of his breach of duty
If an exam question follows the Andrew’s approach, it is likely that there will be what?
Liability
What are the factors included in the Andrew’s approach?
- foreseeability of harm
- directness of connection between D’s act and plaintiff’s harm
- if it was natural/continuous sequence between the two
- if the act was a substantial factor in causing harm
- if the harm was too remote in time and space
What are the one words to sum up the Andrews and the Cardozo views to foreseeability?
- Andrews: anyone
- Cardozo: zone
What is the Cardozo view for proximate cause?
Duty is only owed to foreseeable plaintiffs in the zone of danger (those a reasonable person would have foreseen a risk to under the circumstances)
A reasonable person following the Cardozo view would’ve had to have foreseen what?
A risk of harm to the plaintiff or a class of people the plaintiff belongs to and been in the zone of danger
If you come to the rescue of someone imperiled, are you within the scope of the Cardozo view?
Yes, because the rescuer is as much a foreseeable plaintiff as the person actually injured
In the Palsgraf case, why didn’t Cardozo find a duty owed to the woman that had the scales fall on her?
Because a reasonable person wouldn’t have foreseen any risk to her, since she was a considerable distance away and wasn’t in the zone of danger, so defendant didn’t owe her a duty of care
When would a defendant not be liable to the rescuer under the Cardozo view?
If the rescue attempt was foolhardy under the circumstances
What is the standard of care for negligence?
Reasonably prudent person acting with reasonable care
The standard of care never changes but what?
The care that is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it
Under the standard of care for negligence, the greater the danger, the greater the what?
Care that must be exercised
What does the standard of care required for negligence mean?
Level of conduct demanded of a person to avoid liability for negligence
What is the reasonable person standard?
A person that exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and others’ interests
What must be established for negligence?
- duty
- standard of care
- breach
- causation: actual and proximate
- damages
