Torts AMP Set - Breach And Causation Flashcards
What is one of the effects of res ipsa loquitur?
A It creates a presumption of negligence
B It requires the defendant to present evidence of due care in rebuttal
C The burden of proof switches to the defendant
D No directed verdict may be given for the defendant
D
One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence. The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence. Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal. If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue. QUESTION ID: T0061A Additional Learning
Which of the following is correct when the extent or severity of harm to the plaintiff is unforeseeable?
A The defendant is liable for any aggravation of an existing physical or mental illness
B The defendant can be liable only if he was the direct cause of the harm
C The defendant is only liable for the damages that were foreseeable
A
Where the defendant’s negligence causes an aggravation of the plaintiff’s existing physical or mental illness, the defendant is liable for the damages caused by the aggravation. In both direct cause and indirect cause cases, the fact that the extent or severity of the harm was not foreseeable does not relieve the defendant of liability; i.e., the tortfeasor takes his victim as he finds him. The defendant is liable even for damages that were not foreseeable. QUESTION ID: T0087A Additional Learning
Which of the following is true as to intervening forces in a proximate cause analysis?
A Subsequent medical malpractice is usually not foreseeable
B Rescuers are generally not foreseeable intervening forces
C Acts of God may be foreseeable intervening forces
C
Acts of God may be foreseeable intervening forces. Some intervening forces (such as acts of God) are independent actions, not natural responses or reactions to the situation created by the defendant’s negligence. These forces may be foreseeable if the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff. Thus, acts of God will not cut off the defendant’s liability if they are foreseeable. Subsequent medical malpractice is a type of intervening forces that is almost always foreseeable, and so the original tortfeasor usually is liable for that negligence. Generally, rescuers are viewed as foreseeable intervening forces. A rescue is a type of intervening force that is a normal response or reaction to a situation created by a defendant’s negligent act. QUESTION ID: T0085A Additional Learning
The defendant negligently blocked a road, forcing the plaintiff to take an alternate road that was equally safe. Another driver negligently collided with the plaintiff on that road.
The defendant is not liable to the plaintiff because the collision is __________.
A a foreseeable result caused by an unforeseeable intervening force
B an unforeseeable result caused by an unforeseeable intervening force
C an independent result caused by a dependent intervening force
D an unforeseeable result caused by a foreseeable intervening force
B
The defendant is not liable because the collision is an unforeseeable result caused by an unforeseeable intervening force. As a general rule, intervening forces that produce unforeseeable results (i.e., results that were not within the increased risk created by defendant’s negligence) will be deemed to be unforeseeable and superseding. A superseding force is one that serves to break the causal connection between defendant’s initial negligent act and the ultimate injury, and itself becomes a direct, immediate cause of the injury. Thus, defendant will be relieved of liability for the consequences of his antecedent conduct. Here, the defendantf’s negligence was an actual cause of the plaintiff’s injury because it would not have happened but for the defendant’s negligence, but it did not increase the risk that a completely unrelated collision would happen. The result was not caused by a foreseeable intervening force because the other driver’s negligence was completely unrelated to any risk created by the original defendant’s negligence. Similarly, the collision was not a foreseeable result because traveling on the equivalent alternate road did not make a collision foreseeable. The collision is not an independent result caused by a dependent intervening force because dependent forces are those that are normal responses or reactions to the situation created by the defendant’s negligent act, and here the force was unrelated to the defendant’s conduct. QUESTION ID: T0086 Additional Learning
Which of the following statements is not true under the rule that the tortfeasor takes the victim as he finds him?
A The rule applies to the victim’s existing physical condition but not his mental condition.
B The rule is also known as the “eggshell-skull plaintiff” rule.
C The rule applies in both direct cause cases and indirect cause cases.
D The unforeseeable severity of the plaintiff’s harm does not relieve the defendant of liability.
A
The rule that the tortfeasor takes the victim as he finds him applies to BOTH the victim’s existing physical condition and his mental condition. In both direct cause cases and indirect cause cases, the fact that the extent or severity of the harm was not foreseeable does not relieve defendant of liability; in other words, the unforeseeable severity of the plaintiff’s harm, or its extent, is irrelevant under this rule. The rule is also known as the “eggshell-skull plaintiff” rule. QUESTION ID: T0087 Additional Learning
In which of the following are both of the intervening forces almost always foreseeable in a proximate cause analysis?
A A subsequent accident and an intentional tort of a third person
B Efforts to protect person or property and acts of God
C A subsequent disease and negligence of rescuers
D Subsequent medical malpractice and criminal acts of third persons
C
Intervening forces that are normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable in a proximate cause analysis. A subsequent disease is a common dependent intervening force. The original tortfeasor is usually liable for diseases caused in part by the weakened condition in which the defendant has placed the plaintiff by negligently injuring her. Also, negligence of rescuers is a common dependent intervening force. Rescuers are viewed as foreseeable intervening forces (“danger invites rescue”), so the original tortfeasor usually is liable for their negligence. Efforts to protect person or property are common foreseeable intervening forces. A defendant is typically liable for negligent efforts on the part of persons to protect life or property of themselves or third persons endangered by the defendant’s negligence. Subsequent medical malpractice is also a common dependent intervening force. The defendant is usually liable for the aggravation of the plaintiff’s condition caused by the malpractice of the treating physician. A subsequent accident will also be a foreseeable intervening force if the original injury was a substantial factor in causing the second accident. However, acts of God and criminal acts of third persons are different. While they are intervening forces that operate on the situation created by the defendant’s negligence, they are independent actions rather than natural responses or reactions to the situation. (Note that the defendant may or may not be liable for harm from these intervening forces; it depends on the degree to which the defendant’s negligence increased the risk of harm from these forces.) Thus, the other choices are incorrect because they include an intervening force that is not one of the ones that is almost always foreseeable. QUESTION ID: T0085B Additional Learning
Which of the following is NOT a type of intervening force that is almost always foreseeable in a proximate cause analysis?
A Negligence of rescuers
B A subsequent disease
C Efforts to protect person or property
D Criminal acts of third persons
D
While criminal acts of third persons are intervening forces that operate on the situation created by the defendant’s negligence, they are independent actions rather than natural responses or reactions to the situation. This type of intervening force may be foreseeable, but only when the plaintiff can show that the defendant’s negligence increased the risk that the force would cause harm to the plaintiff. If a defendant’s negligence created a foreseeable risk that a third person would commit a crime, the defendant’s liability will not be cut off by the criminal act. On the other hand, intervening forces that are normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable. Negligence of rescuers is a common foreseeable intervening force. Generally rescuers are viewed as foreseeable (“danger invites rescue”), so the original tortfeasor is liable for their negligence. Efforts to protect person or property typically are also foreseeable intervening forces. A defendant is usually liable for negligent efforts on the part of persons to protect life or property of themselves or third persons endangered by the defendant’s negligence. A subsequent disease also is commonly a foreseeable intervening force. The original tortfeasor is usually liable for diseases caused in part by the weakened condition in which the defendant has placed the plaintiff by negligently injuring her. QUESTION ID: T0085C Additional Learning
Under the alternative causes approach to actual causation in negligence:
A It may be applied to one defendant with alternative theories of liability
B Each defendant initially must show he was not responsible before the burden shifts to the plaintiff
C The burden of proof shifts to the defendants after the plaintiff establishes that one of them caused the harm
C
Under the alternative causes approach, the plaintiff must prove that harm has been caused to him by one of the defendants (with uncertainty as to which one), and then the burden of proof shifts to the defendants, and each must show that his negligence was not the actual cause. Thus, the burden does NOT shift to the plaintiff; rather, he has the initial burden of establishing causation and then the burden shifts to the defendants. The alternative causes approach is best used for when there is a problem of causation after two or more persons have been negligent but uncertainty exists as to which one caused the plaintiff’s injury. It is not used against one defendant with alternative theories of liability. QUESTION ID: T0083A Additional Learning
Which of the following is true regarding proximate cause for negligence?
A Proximate cause is a limitation of liability
B Proximate cause creates liability for unforeseeable consequences of one’s conduct
C A defendant can be liable without his conduct being the proximate cause of an injury
A
Proximate cause is a limitation of liability. It deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts. In addition to being a cause in fact, the defendant’s conduct MUST ALSO BE the proximate cause of the injury for the defendant to be liable. If his conduct is not the proximate cause, he is not liable. Not all injuries “actually” caused by a defendant will be deemed to have been proximately caused by his acts. Thus, proximate cause does not create liability for unforeseeable consequences of one’s conduct; rather, it may limit liability for unforeseeable consequences. QUESTION ID: T0084C Additional Learning
To show breach of duty, a plaintiff may rely on evidence of any of the following except:
A Violation of a statute
B A “Good Samaritan” law
C Custom or usage
D Res ipsa loquitur
B
A “Good Samaritan” law has nothing to do with breach of duty. It refers to a statute exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence. Hence, it would not be used to establish breach of duty. To prove breach of duty, it must be shown what in fact happened, and (based on these facts) that the defendant acted unreasonably. Proof of what happened may be established by either direct or circumstantial evidence. Other matters may also be offered into evidence to establish the standard by which defendant’s conduct is to be measured, such as: Custom or usage; Violation of an applicable statute; andThe circumstantial evidence doctrine of res ipsa loquitur. QUESTION ID: T0060 Additional Learning
Which of the following is correct regarding proximate cause in negligence?
A A defendant is not liable for the harmful results of his conduct that are unforeseeable
B Proximate cause is not required for a defendant to be liable, but actual cause is required
C A defendant is liable for all harmful results caused by his acts
D Proximate cause is required only when an intervening force contributes to the injury
A
A defendant is not liable when the harmful results of his conduct are unforeseeable. If a defendant’s negligent conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs, most courts hold that the defendant is not liable for that harm. Proximate cause is required in a negligence action. In addition to being a cause in fact, the defendant’s conduct must also be a proximate cause of the injury. The doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts. A defendant is NOT liable for all harmful results caused by his acts. Not all injuries actually caused by the defendant will be deemed to have been proximately caused by his acts. The general rule of proximate cause is that the defendant is liable for only the harmful results that are the normal incidents of, and within the increased risk caused by, his acts (i.e., foreseeable results). Proximate cause is NOT required only when an intervening force contributes to the injury (indirect cause cases). Even in direct cause cases, the proximate cause doctrine may limit liability in a rare case. QUESTION ID: T0084A Additional Learning
Which of the following is correct regarding breach of the duty of care?
A Whether a breach occurred is a question for the trier of fact
B Proof of a defendant’s breach must be established by direct evidence
C Proof of custom is controlling in determining whether a breach occurred
A
When a defendant’s conduct falls short of what is required by the applicable duty of care owed to the plaintiff, she has breached her duty. Whether a breach occurred is a question for the trier of fact. Proof of a breach requires showing what happened and that these facts prove that the defendant acted unreasonably. Proof of a defendant’s breach need NOT be established by direct evidence. Proof of what happened may also be established by circumstantial evidence. Proof of custom does NOT control in determining whether a breach occurred. Custom or usage may be introduced to establish the standard of care in a given case. Customary methods of conduct, however, do not furnish a conclusive test for controlling the question of whether certain conduct amounted to negligence. QUESTION ID: T0060A Additional Learning
Which of the following is NOT a type of intervening force that is virtually always considered foreseeable?
A Reflexive actions
B Negligence of rescuers
C Acts of God
D Subsequent medical malpractice
C
Acts of God are not a type of intervening force that is virtually always considered foreseeable. Rather, it is an independent intervening force that will only be considered foreseeable if the defendant’s conduct significantly increased the risk of harm from that force. The other situations - subsequent medical malpractice, negligence of rescuers, and reflexive actions - involve natural responses or reactions to the situation created by the defendant’s conduct and are virtually always deemed foreseeable. QUESTION ID: T0085 Additional Learning
For the doctrine of res ipsa loquitur to apply, the plaintiff must establish that _________.
A The accident would not normally occur unless someone was negligent
B The defendant violated a statute establishing a standard of care
C The defendant possessed the instrumentality that caused the injury
A
For the doctrine of res ipsa loquitur to apply, the plaintiff must establish that the accident causing his injury is the type that would not normally occur unless someone was negligent. The circumstantial evidence doctrine of res ipsa loquitur deals with situations where the fact that a particular injury occurred tends to establish a breach of a duty owed. Res ipsa loquitur requires that the plaintiff present evidence connecting the defendant with the negligence that occurred in order to support a finding of liability. This requirement can be satisfied by showing that the instrumentality that caused the injury was in the exclusive control of the defendant, but actual possession of the instrumentality is NOT necessary. It is not necessary to show that the defendant violated a statute establishing a standard of care. Establishing negligence by application of res ipsa loquitur is distinct from establishing negligence through the violation of a statute. QUESTION ID: T0049A Additional Learning
Which of the following best describes res ipsa loquitur?
A The fact that a particular injury occurred tends to establish the breach of a duty owed
B Proof that a defendant violated a statute establishes the existence of a duty owed and breach thereof
C Custom or usage establishes the standard of care in a given case
A
Res ipsa loquitur deals with those situations where the fact that a particular injury occurred may itself tend to establish the breach of a duty owed, because the type of injury that occurred would not normally occur in the absence of negligence. Where the facts are such as to strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer the defendant’s liability. Res ipsa loquitur does not refer to custom or usage establishing the standard of care. Custom or usage may be introduced to establish the standard of care in a given case. Unlike res ipsa loquitur, however, customary methods of conduct do not furnish a test that conclusively controls the question of whether certain conduct amounted to negligence. Res ipsa loquitur also does not refer to the defendant’s violation of a statute as establishing the existence of a duty and breach thereof. Proof that a defendant violated an applicable statute may establish the existence of a duty owed to a plaintiff and a breach thereof, but that is not an application of circumstantial evidence to show breach of duty, as res ipsa loquitur is. QUESTION ID: T0060B Additional Learning
