Neglicence

Question 1

Duty

Answer 1

i.e. The obligation to act in a reasonable manner considering the facts and circumstances.

generally a question of law for the court

Question 2

Cardozo’s view of duty:

Answer 2

Could the action foreseeably cause harm?

If so, is the plaintiff within the foreseeable zone of risk?

If yes and yes, a duty is owed.

Question 3

The Nature of the Duty Owed

Answer 3

Reasonable care taking into account the facts and circumstances

Question 4

Four Ways to Prove Breach

Answer 4

1. unreasonable given facts & circumstances
2. Negligence per se
3. Industry custom
4. Res ipsa loquitur

Question 5

Negligence Per Se

Answer 5

Violation of a relevant statute equals breach.

Question 6

Industry Custom

Answer 6

General rule: Compliance with an industry custom is relevant but not dispositive as to the question of breach (same for noncompliance).

Question 7

Res Ipsa Loquitur

Answer 7

The thing speaks for itself.
1. The type of injury is usually associated with negligence

2. Defendant had exclusive control of whatever caused the injury
3. plaintiff had no causal contribution to the harm
4. defendants access to evidence is superior to the plaintiff.

Byrne v. Boadle

Question 8

Legal Cause

Answer 8

For a defendant to be liable for negligence, the defendant’s acts or omission must have been the legal cause of the plaintiff’s harm/damages

1. Cause-in-fact
2. Proximate cause

Question 9

Direct Cause Test

Answer 9

There must a direct connection between the act and the injury

Question 10

Cause in Fact - But-for causation

Answer 10

But for D’s negligent act or omission, the harm to P would not have occurred.

Question 11

Foreseeability

Answer 11

Was the general type of accident foreseeable

Tieder v. Little

3rd party criminal acts are not foreseeable.

Question 12

Substantial Factor Test

Answer 12

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible

(c) lapse of time.

American Truck Leasing v. Thorne Equipment Co.

Question 13

Intervening & Superseding Causes:

Answer 13

If the intervening act is foreseeable, then the chain of proximate cause is not broken, and the original actor will be responsible for all harm.

If the intervening act is not foreseeable, then the chain of proximate cause is broken, and the original actor’s liability will be cut off or otherwise limited.

Price v. Blaine

Question 14

Proximate cause

Answer 14

Defendants conduct and plaintiffs harm must have a reasonably close connection

Jurisdictional jury question

Question 15

Multiple Sufficient Causes

Answer 15

Where two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it regardless of the other,” then the defendants are liable.

Kingston v Chicago

Question 16

Alternative Liability

Answer 16

When two or more defendants’ acts are possibly the sole cause of a harm and the plaintiff has introduced evidence that one of the defendants is culpable then it burden of proof shifts to the each defendant of his innocence.

Summers v. Tice.

Question 17

Concert of action

Answer 17

1. tortious act pursuant to a common design with another.
2. knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other
3. gives substantial assistance or encouragement to the other and his own conduct separately considered constitutes a breach

Shinn v. Allen

Question 18

Market Share Liability

Answer 18

For plaintiffs unable to identify the precise manufacturer of the product.

each defendant that can not prove that it did not injure the plaintiff would be liable according to it’s national market share.

Hymowitz v. Eli Lilly

Question 19

Major Kinds of General Damages

Answer 19

1. Pain and suffering
2. Loss of consortium
3. Hedonic damages

Question 20

Major Kinds of Special Damages

Answer 20

1. Medical expenses (past and future)
2. Lost wages—past
3. Future lost wages and/or loss of earning capacity

Question 21

contributory negligence

Answer 21

Complete bar to a plaintiff’s recovery no matter how small a contribution the negligence made.

Wright v. Norfolk

Question 22

comparative negligence

Answer 22

Assigns a percentage to the plaintiff’s fault

Question 23

Pure comparative negligence

Answer 23

Plaintiff is barred from recovery only if the plaintiff’s percentage of responsibility is 100 percent

Question 24

Modified comparative negligence

Answer 24

Plaintiff is barred only if the percentage of responsibility is greater than 49 or 50 percent depending on jurisdiction.

49 - McIntyre v. Balentine
50

Question 25

Limits on Liability (R3)

Answer 25

Limits on liability: “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” (The risk standard)

Question 26

Partial Standard of care Exceptions

Answer 26

1. People with special training or abilities
2. Children (inherently dangerous activities or adult activities test)
3. People with physical handicaps (but not people with mental handicaps)

Question 27

Eggshell Skull Plaintiff

Answer 27

You take the plaintiff as you find them.

Pre-existing frailties do not matter - damages can not be minimized

Schafer v. Hoffman