Torts (Negligence)

Question 1

Negligence (4 Elements)

Answer 1

(1) The defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) the plaintiff suffered actual damages, (4) the defendant’s negligence was an actual cause of this damage, (5) the defendant’s negligence was a proximate cause of this damage

Question 2

Negligence per se (4 Elements)

Answer 2

(1) Standard of care clearly defined (2) type of harm (3) protected class (4) proximate cause

Question 3

Duty (definition)

Answer 3

The duty owed by all people generally – the standard of care they owe – is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risk of harm to others.

Question 4

Breach (5 tests to prove)

Answer 4

(1) Forseeability test, (2) Hand formula, (3) Custom/usage, (4) Res ipsa loquitur , (5) Negligence Per Se

Question 5

Negligence per se (4 Elements)

Answer 5

(1) Standard of care clearly defined, (2) type of harm, (3) protected class, (4) proximate cause

Question 6

Harm (definition)

Answer 6

Plaintiff must suffer legally recognizable harm, frequently referred to as actual damages, to win a negligence action.

Question 7

Actual cause (definition)

Answer 7

Plaintiff must prove not only that she suffered legally recognized harm, but that the harm was in fact caused by the defendant. (The “but for” test.)

Question 8

Affirmative defenses to the negligence case; elements to prove with both (list and elements)

Answer 8

(1) Assumption of the risk (express, primary, secondary), (2) comparative negligence (pure comparative, modified comparative, contributory).

To prove either of these, you must establish: (1) conduct, (2) actual causation, (3) proximate causation

Question 9

Pure comparative negligence (definition)

Answer 9

Plaintiff receives a percentage of the total damages, based on the percentage that he was found to have contributed to the event (which is subtracted from his total damages), no matter what that percentage is. If plaintiff was 99% negligent and defendant was 1% negligent, plaintiff will still recover 1% of his damages. [33 states]

Question 10

Modified comparative negligence (definition)

Answer 10

Plaintiff receives a percentage of the total damages if plaintiff is found to be 0-50% negligent. Plaintiff receives a percentage of the total damages, based on the percentage that he was found to have contributed to the event (which is subtracted from his total damages). If plaintiff was found more than 50% negligent as well, he gets nothing. [13 states, including FL]

Question 11

Contributory negligence (definition)

Answer 11

If plaintiff has any responsibility to his injury, he gets nothing. [4 states]

Question 12

Assumption of the risk (Express or Contractual) (definition)

Answer 12

Express assumption of risk is simply a contractual surrender of the right to sue in tort. Sometimes an individual contractually agrees in advance to waive his or her right to bring a tort action against a potential defendant. Courts have generally held that these contractual waivers and disclaimers of tort liability are valid so long as they are entered into knowingly, voluntarily, and with an appreciation of their significance.

Question 13

Assumption of the risk (secondary) (definition and elements)

Answer 13

Refers to negligent and knowing risk-taking actions by the plaintiff. Throws the plaintiff’s butt on the street. Applies when three conditions are met: (1) Plaintiff knew of the risk (2) appreciated its danger (3) and voluntarily confronted it

Question 14

Assumption of the risk (secondary) (definition and elements)

Answer 14

Refers to negligent and knowing risk-taking actions by the plaintiff. Throws the plaintiff’s butt on the street. Applies when three conditions are met: (1) Plaintiff knew of the risk (2) appreciated its danger (3) and voluntarily confronted it

Question 15

Res ipsa loquitur (definition and elements)

Answer 15

“The thing speaks for itself.” (1) The accident which produced the injury is one which ordinarily does not occur in the absence of negligence. (2) The instrumentality that produces the accident is under the defendant’s exclusive control. (3) The plaintiff himself did not contribute in any way to the risk which caused the accident.

Question 16

Res ipsa loquitur (definition and elements)

Answer 16

“The thing speaks for itself.” (1) The accident which produced the injury is one which ordinarily does not occur in the absence of negligence. (2) The instrumentality that produces the accident is under the defendant’s exclusive control. (3) The plaintiff himself did not contribute in any way to the risk which caused the accident.

Question 17

When will you not be held negligent? (Five excuses)

Answer 17

(1) Incapacity (2) diligence and care (impossibility) (3) emergency (4) alternative (5) lack of knowledge

Question 18

Express or Contractual Assumption of Risk (3 Elements)

Answer 18

Contractual waivers and disclaimers of tort liability are valid so long as they are entered into (1) knowingly, (2) voluntarily, and (3) with an appreciation of their significance

Question 19

Primary Assumption of Risk

Answer 19

A potential plaintiff always and necessarily “assumes the risk” that he or she will be injured in a non-negligent manner.

Question 20

Secondary Assumption of Risk (3 Elements)

Answer 20

(1) Plaintiff knew of the risk; (2) appreciated its danger; and (3) voluntarily confronted it.

Question 21

The Hand Inequality

Answer 21

The Burden of preventing the injury must be less than the Probability of it occurring multiplied by the economic Loss of the potential injury

Question 22

Joint and Several Liability (aka Alternative Liability)

Answer 22

Imposes burden of proof on the defendants, requires (1) multiple tortfeasers; (2) multiple unprovable causes; and that (3) damage would occur from any of those causes.