Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts FYLSE > Page 10 > Flashcards

Page 10 Flashcards

0
Q

What is the jury’s role in negligence?

A

To decide if the defendant was acting reasonably

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
1
Q

If the plaintiff can’t establish one or more elements of negligence by a preponderance of the evidence, what happens?

A

Defendant wins

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Negligence is liability for what?

A

Unreasonable risk creation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What does the defendant do in a negligence situation?

A

Engages in risk creating conduct that leads to personal injury/property damage to a foreseeable P

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is the most frequently tested subject in tort?

A

Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Does the standard of care for negligence ever change?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is proximate cause for negligence?

A

Negligence was an event sufficiently related to the injury to be the cause of it, close enough to harm in a chain of events

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is duty for negligence?

A

Generally you owe a duty to all foreseeable plaintiffs within the zone of danger to act as a reasonably prudent person under the circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Does it make a difference if the defendant believed he was acting in good faith and being careful, to the duty analysis for negligence?

A

No, all that matters is how a reasonable person of ordinary prudence would’ve acted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

How is the duty test for negligence aspirational?

A

It doesn’t ask what an ordinary person really does, but how he ought to behave under the circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Why should you never tell the jury to ask how they would’ve acted in a negligence suit?

A

Because they have to act how a reasonable person would’ve acted in those circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

The greater the foreseeable risk of harm involved for negligence, the greater the what?

A

Care required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the only element of negligence that is first decided by the judge, and then the other elements are decided by the jury?

A

Duty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the things that the judge decides for duty?

A
  • does D owe a duty of care? If he does….

- what is the scope of the duty?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What are the elements of proximate cause for negligence?

A
  • foreseeability

- zone of danger

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the foreseeability that is required for proximate cause for negligence?

A

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

16
Q

What does it mean to consider the scope of liability for foreseeability for negligence?

A

How far the defendant’s liability extends for consequences caused by his negligent acts

17
Q

What is the zone of danger for proximate cause for negligence?

A

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

18
Q

What is the defining case for zone of danger for proximate cause for negligence?

A

Palsgraf

19
Q

What are the three tests for proximate cause for negligence?

A
  • Foreseeability test
  • Directness/remoteness test
  • Risk rule
20
Q

What is the foreseeability test for proximate cause for negligence?

A

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

21
Q

What is the directness/remoteness test for proximate cause for negligence?

A

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

22
Q

What is the risk rule for proximate cause for negligence?

A

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

23
Q

What were the two major views in the Palsgraf case?

A
  • Andrews’ dissenting broad view

- Cardozo’s narrow view

24
Q

What was the Andrew’s approach to the Palsgraf case?

A

Defendant owes a duty to anyone in the world that suffers injuries as a result of his breach of duty

25
Q

If an exam question follows the Andrew’s approach, it is likely that there will be what?

A

Liability

26
Q

What are the factors included in the Andrew’s approach?

A
  • 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
27
Q

What are the one words to sum up the Andrews and the Cardozo views to foreseeability?

A
  • Andrews: anyone

- Cardozo: zone

28
Q

What is the Cardozo view for proximate cause?

A

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)

29
Q

A reasonable person following the Cardozo view would’ve had to have foreseen what?

A

A risk of harm to the plaintiff or a class of people the plaintiff belongs to and been in the zone of danger

30
Q

If you come to the rescue of someone imperiled, are you within the scope of the Cardozo view?

A

Yes, because the rescuer is as much a foreseeable plaintiff as the person actually injured

31
Q

In the Palsgraf case, why didn’t Cardozo find a duty owed to the woman that had the scales fall on her?

A

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

32
Q

When would a defendant not be liable to the rescuer under the Cardozo view?

A

If the rescue attempt was foolhardy under the circumstances

33
Q

What is the standard of care for negligence?

A

Reasonably prudent person acting with reasonable care

34
Q

The standard of care never changes but what?

A

The care that is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it

35
Q

Under the standard of care for negligence, the greater the danger, the greater the what?

A

Care that must be exercised

36
Q

What does the standard of care required for negligence mean?

A

Level of conduct demanded of a person to avoid liability for negligence

37
Q

What is the reasonable person standard?

A

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

38
Q

What must be established for negligence?

A
  • duty
  • standard of care
  • breach
  • causation: actual and proximate
  • damages

Torts FYLSE (61 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions