Torts Essay Workshop

Question 1

What must a plaintiff show to establish a claim of negligence?

Answer 1

The actor had a duty to conform to a standard of care, breached that duty, and the breach was the actual and proximate cause of the plaintiff’s injury/damage.

Question 2

What is the standard of care generally based on?

Answer 2

The standard of care is based on that of a reasonable person under the circumstances.

standard necessary to avoid an unreasonable risk of harm to others. *to avoid foreseealbe risks

Question 3

What is negligence per se?

Answer 3

Negligence per se occurs when:
(1) a defendant violates a law
(2) that has a specific command,
(3) the victim is in the class of persons the law is intended to protect, and
(4) the law is meant to prevent the type of harm suffered.

Question 4

What elements must a plaintiff establish for negligence per se?

Answer 4

• Specific command
• Class of persons intended to protect
• Meant to prevent the harm suffered.

Question 5

What must a plaintiff establish regarding causation in a negligence claim?

Answer 5

The defendant’s conduct is the actual and proximate cause of the plaintiff’s injury.

Question 6

Define actual causation.

Answer 6

The harm would not have occurred but for the defendant’s breach.

Question 7

Define proximate causation.

Answer 7

The harm is the foreseeable result of the defendant’s negligent conduct.

Question 8

Will an intervening force absolve a defendant’s liability?

Answer 8

Generally, no; a defendant will be liable for all harm that is the foreseeable consequence of their negligent conduct.

Question 9

What is res ipsa loquitur (RIL)?

Answer 9

A legal doctrine that allows a plaintiff to prove negligence through the occurrence of the accident itself without showing a specific breach.

Question 10

What must a plaintiff prove under res ipsa loquitur?

Answer 10

• The type of accident would have only occurred were the defendant negligent
• The defendant had some control over the instrumentality that caused the accident
• The victim was not contributorily negligent.

Question 11

What does it mean for tortfeasors to be jointly and severally liable?

Answer 11

The plaintiff may sue and obtain the full amount of damages from any jointly and severally liable defendant.