Breach and Causation Flashcards Preview

Bar Review: Torts > Breach and Causation > Flashcards

Flashcards in Breach and Causation Deck (21):
1

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. No directed verdict may be given for the defendant.

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

2

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. The defendant is liable for any aggravation of an existing physical or mental illness.

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

3

Which of the following is true as to intervening forces in a proximate cause analysis?

A. Dependent intervening forces are 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.

Acts of God may be foreseeable intervening forces. Independent intervening forces 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. Dependent intervening forces are almost always foreseeable. They are normal responses or reactions to a situation created by a defendant’s negligent act. Generally, rescuers are viewed as foreseeable intervening forces, and so the original tortfeasor usually is liable for their negligence. QUESTION ID: T0085A Additional Learning

4

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. an unforeseeable result caused by an unforeseeable intervening force.

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 defendant’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

5

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 applies to the victim’s existing physical condition but not his mental condition.

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

6

Which of the following describe only dependent intervening forces 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. A subsequent disease and negligence of rescuers

Dependent intervening forces are normal responses or reactions to the situation created by the defendant’s negligent act. Dependent intervening forces are almost always foreseeable. 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. Generally rescuers are viewed as foreseeable intervening forces, so the original tortfeasor usually is liable for their negligence. Efforts to protect person or property are common dependent 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. 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 may also be a dependent 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 independent intervening forces. Independent intervening forces operate on the situation created by the defendant’s negligence, but they are independent actions rather than natural responses or reactions to the situation. (Note that defendant may or may not be liable for independent intervening forces. It depends on whether they are foreseeable.) QUESTION ID: T0085B Additional Learning

7

Which of the following is not a dependent intervening force 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. Criminal acts of third persons.

Criminal acts of third persons are independent intervening forces for purposes of proximate cause. Independent intervening forces operate on the situation created by the defendant’s negligence, but are independent actions rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable when the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff. If a defendant’s negligence created a foreseeable risk that a third person would commit a crime or intentional tort, the defendant’s liability will not be cut off by the crime or tort. Dependent intervening forces are normal responses or reactions to the situation created by the defendant’s negligent act. Dependent intervening forces are almost always foreseeable. Negligence of rescuers is a common dependent intervening force. Generally rescuers are viewed as foreseeable intervening forces, so the original tortfeasor usually is liable for their negligence. Efforts to protect person or property are common dependent 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 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. QUESTION ID: T0085C Additional Learning

8

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. The burden of proof shifts to the defendants after the plaintiff establishes that one of them caused the harm

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

9

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.

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

10

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.

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; and the circumstantial evidence doctrine of res ipsa loquitur. QUESTION ID: T0060 Additional Learning

11

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 for the harmful results of his conduct that are unforeseeable.

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

12

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. Whether a breach occurred is a question for the trier of fact.

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

13

Which of the following is not a typical dependent intervening force?

A. “Reaction” forces
B. Negligence of rescuers
C. Acts of God
D. Subsequent medical malpractice

C. Acts of God.

Acts of God are not considered dependent intervening forces. Rather, they are independent intervening forces. Even though they are independent intervening forces, however, they will not cut off the defendant’s liability if they are foreseeable. Subsequent medical malpractice, negligence of rescuers, and “reaction” forces (i.e., reflexive responses to the defendant’s actions) are typical dependent intervening forces, because they are normal responses to the situation created by the defendant’s negligence. QUESTION ID: T0085 Additional Learning

14

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. The accident would not normally occur unless someone was negligent.

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

15

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. The fact that a particular injury occurred tends to establish the breach of a duty owed.

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

16

The “eggshell-skull plaintiff” rule means:

A. The tortfeasor is liable to the plaintiff only for foreseeable damages
B. The plaintiff’s damages will be reduced if he could have taken precautions to protect himself
C. The tortfeasor takes her victim as she finds him

C. The tortfeasor takes her victim as she finds him.

The “eggshell-skull plaintiff” rule means that the tortfeasor takes her victim as she finds him. 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; hence, the tortfeasor is liable to the plaintiff not only for foreseeable damages but also for unforeseeable damages. Thus, 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. The “eggshell-skull plaintiff” rule has nothing to do with whether the plaintiff’s damages will be reduced by his failure to take precautions. QUESTION ID: T0087B Additional Learning

17

Which of the following is an effect of res ipsa loquitur?

A. It shifts the burden of proof to the defendant
B. It creates a presumption of negligence on the part of the defendant
C. It establishes a prima facie case for the plaintiff

C. It establishes a prima facie case for the plaintiff.

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. When res ipsa loquitur has been proved, a prima facie case has been established for the plaintiff, and no directed verdict may be given for the defendant. The doctrine does NOT shift the burden of proof to the defendant, and it does NOT create a presumption of negligence on the part of the defendant. QUESTION ID: T0049B Additional Learning

18

There often is more than one cause for an injury.

The “but for” test for actual cause applies to __________.

A. concurrent causes
B. superseding causes
C. alternative causes
D. joint causes

A. concurrent causes.

The “but for” test for actual cause applies to concurrent causes. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies in concurrent cause cases, where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. But for any of the acts, the injury would not have occurred. The “substantial factor” test is used for joint causes, where several causes commingle and bring about an injury, but any one alone would have been sufficient to cause the injury. In that case, it is sufficient if defendant’s conduct was a “substantial factor” in causing the injury. An alternative causes situation arises when two or more persons have been negligent, but uncertainty exists as to which one caused the plaintiff’s injury. Under this approach, the plaintiff must prove that harm has been caused to him by one of them (with uncertainty as to which one). The burden of proof then shifts to the defendants, and each must show that his negligence is not the actual cause. Superseding causes arise in the context of proximate cause rather than actual cause. In addition to being an actual cause, the defendant’s conduct must also be a proximate cause of the injury. Causes that arise after the defendant’s conduct that contribute to the injury may be so unforeseeable as to be superseding causes, which cut off the defendant’s liability for his original negligent act. QUESTION ID: T0082 Additional Learning

19

In determining actual cause in a negligence action, the burden of proof shifts to the defendant under the __________.

A. Alternative causes approach
B. Substantial factor test
C. “But for” test
D. Joint causes approach

A. Alternative causes approach.

Under the alternative causes approach, the burden of proof shifts to the defendant in determining actual cause in a negligence action. A problem of causation exists where two or more persons have been negligent, but uncertainty exists as to which one caused the plaintiff’s injury. 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). The burden of proof then shifts to the defendants, and each must show that his negligence is not the actual cause. In contrast, the substantial factor test is used in a joint causes situation—when several causes commingle and bring about an injury and any one alone would have been sufficient to cause the injury. The burden of proof does not shift to the defendant in the application of the standard “but for” test. QUESTION ID: T0083B Additional Learning

20

Which of the following situations involves a dependent intervening force?

A. A roofer negligently leaves a hammer on the plaintiff’s roof, and a strong wind blows the hammer off the roof, where it strikes the plaintiff
B. A defendant negligently blocks a sidewalk, forcing the plaintiff to walk in the roadway, where he is struck by a negligently driven car
C. A parking lot attendant negligently leaves the keys to the plaintiff’s car inside it with the doors unlocked, allowing a thief to steal it
D. A defendant negligently causes a plaintiff to break her leg, and while walking on her crutches, the plaintiff loses her balance and breaks her other leg

D. A defendant negligently causes a plaintiff to break her leg, and while walking on her crutches, the plaintiff loses her balance and breaks her other leg

If the plaintiff loses her balance while on crutches and breaks her other leg, this involves a dependent intervening force. A dependent intervening force is a normal response or reaction to the situation created by the defendant’s act. This is a subsequent accident situation, where the plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident. Hence, this is a dependent intervening force case. The other situations involve independent intervening forces. Independent intervening forces operate on a situation created by a defendant’s negligence but are independent actions, rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff. The situation where the defendant negligently blocks a sidewalk describes a common fact situation involving an independent intervening force—the negligent act of a third person. The situation where the parking lot attendant leaves a car unlocked with the keys inside, allowing a thief to steal it, describes a common situation involving an independent intervening force of criminal acts of third persons. If a defendant’s negligence created a foreseeable risk that a third person would commit a crime or intentional tort, the defendant’s liability is not cut off by the crime. The situation where the roofer leaves a hammer that is blown off the roof describes an act of God, which is a common situation involving an independent intervening force. Acts of God will not cut off a defendant’s liability if they are foreseeable. QUESTION ID: T0086A Additional Learning

21

If the plaintiff establishes res ipsa loquitur, it will have the following effect:

A. A directed verdict will not be given for the defendant.
B. The burden of proof is shifted to the defendant.
C. A presumption of negligence is created.
D. A directed verdict will be given for the plaintiff.

A. A directed verdict will not be given for the defendant.

The circumstantial evidence doctrine of res ipsa loquitur deals with those situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed. Where res ipsa loquitur has been proved, the plaintiff has made a prima facie case, and a directed verdict will not be given for the defendant.Application of the doctrine does not shift the burden of proof to the defendant, nor does it create a presumption of negligence. Furthermore, the doctrine does not result in a directed verdict for the plaintiff. The defendant may introduce evidence that due care was exercised, and the jury may reject the permissible inference that may be drawn from the res ipsa proof and find for the defendant.QUESTION ID: T0049 Additional Learning