negligence Flashcards
what are the elements of a negligence suit
duty, breach, causation, damages
duty is a question for who
the judge not the jury
breach asks what
could the defendant have acted differently
causation
actual cause is ‘cause in fact’ while proximate cause is ‘legal cause’. the key is the foreseeability
what can damages entail?
personal injury, property damage, monetary loss, NO nominal damages in negligence cases
what is the basic standard of care in negligence
a person who acts negligently if the person does not exercise reasonable care under all the circumstances [3rd restatement]
what is the second restatement of torts
“conduct is not negligent unless the magnitude of the risk involved therein so outweighs its utility as to make the risk unreasonable”
define duty
the defendant has a legal obligation to follow a standard of conduct to protect others from unreasonable risks.
define breach of duty
the defendant fails to conform to that standard
define proximate cause
the defendant’s breach of duty has a causal link with the harm suffered by the plaintiff
define actual damage
the plaintiff suffers actual damage; nominal damages do not create a cause of action for negligence
how does unreasonable risk fall under breach of duty?
the plaintiff must establish breach of duty by showing that the defendant’s conduct created an unreasonable risk of harm
what is the hand test
courts have developed a “balancing test” known as the ‘hand test’ to calculate whether or not a risk was “unreasonable” to the defendant in comparison with the burden on the defendant to avoid it
how do you calculate liability?
Liability exists where the burden on the defendant to avoid the risk (B) is less than the gravity of the injury (L) multiplied by the probability (P) that the defendant’s harm will cause the injury. Or, B < P x L.
