Negligence Flashcards
What is negligence?
When a reasonable person would have foreseen the harm?
What are the elements of Negligence?
Duty
Breach
Cause-in-Fact
Proximate Cause
Damage
Does negligence factor in a person’s characteristics?
The reasonable person standard factors in the defendant’s physical, but not mental, limitations.
Does negligence factor in a person’s superior abilities?
Negligence does factor in a person’s superior abilities (e.g., experience or knowledge).
Are children held to the reasonable standard of care?
No, children are held to the standard of care of:
A reasonable child of similar age, experience, and intelligence in like circumstances.
What is the reasonable person standard of care?
A standard of care based on how a reasonable person would act in like circumstances.
Are there exceptions to children being held to the Child Standard of Care?
Children are generally only held to the adult standard of care when doing adult activities that are inherently dangerous (e.g., driving motorized vehicles or using firearms).
Does the Doctrine of Contributory Negligence bar recovery?
The Doctrine of Contributory Negligence states that if the plaintiff was also negligent, then the plaintiff cannot recover.
This is obsolete in most jurisdictions.
What is Negligence Per Se?
Negligence Per Se holds that an unexcused violation of a statute is negligence in and of itself.
Is Negligence Per Se a majority doctrine?
Negligence Per Se is a majority doctrine with only twelve states holding that violation of statutes can potentially be evidence of negligence and not dispositive evidence of negligence on its own; it is also very popular with over 8,000 cases covering the topic.
What kinds of statutes can Negligence Per Se be applied to?
Federal or State statutes and even ordnances or regulations.
However, a few states hold that Negligence Per Se doctrine don’t treat statutes and regulations the same (instead, they treat regulations as only evidence of the possibility of negligence, not as dispositive of negligence in and of themselves).
Requirements of Negligence Per Se
- Statute clearly defines the required standard of conduct
If the statute doesn’t tell the defendant what to do in the moment, it will generally be rejected.
Even then, it may be rejected if the Court finds the defendant has no duty.
- The statute was intended to prevent the type of harm caused
If the statute is not intended to prevent the type of harm caused, it will not serve as a basis for negligence per se.
- Plaintiff is a member of the class of persons the statute was designed to protect
The statute must be intended to protect a specific sub-group of the population to serve as a basis for negligence per se.
If violating the statute did not increase the risk of harm to the plaintiff, then it is very difficult to argue negligence per se.
- The violation was the proximate cause of the injury.
The court wants to see that the defendant’s violation was in fact the cause of the injury.
Can compliance with a statute of determinative of due care in some cases?
Yes, compliance with a statute can be determinative of due care in the case of federal statutes that Congress intended to be determinative of due care (e.g., compliance with a federal speed limit for trains means that trains going within the speed limit can be assumed to be acting with due care).
Does compliance with a statute always shield the defendant from negligence?
No, mere compliance with a statute is not evidence of absence of negligence.
What is the Breach element of Negligence?
Breach is conduct that imposes unreasonable risks of harm. The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid the risk of harm.
What are the doctrinal hooks of breach?
- Whether a reasonable person would have foreseen the risk
- Whether a reasonable person would have acted
What does breach require?
Breach requires acting unreasonably when there is a risk of harm to a reasonable person.
What is the Hand formula?
B < PL = Negligence (Breach specifically)
B = Burden of Adequate Precaution
P = Probability of the Risk
L = Gravity of the Resulting Injury
What is comparative fault?
A doctrine that limits the plaintiff’s recovery based on the percentage they were negligent in causing their own harm.
Where does the Hand formula come from?
United States v. Carroll Towing Co.
What is contribution in relation to joint and several liability?
When one defendant pays more than their share of liability to the plaintiff, they can go against other defendants to recoup the difference in what they paid and what their share is.
What does it mean for defendants to be jointly and severally liability?
Plaintiffs can go after any defendant and recover all of the damages.
What is several liability?
Defendant can only recover the percentage of damages from each defendant that is owed by that defendant.
What is sufficiency of proof in regards to Breach?
In order to prove breach, the mere fact that harm has been suffered is not sufficient to prove breach. You must show how the defendant failed to execute their duty of care to the plaintiff.
Difference between Lay Witness and Expert Witness testimony in regards to Breach?
Lay Witness
–Testimony must be based on perception of an event.
–Must be helpful to jury.
–Opinions and inferences rarely allowed (usually only proper when the witness is an expert and is qualified as an expert).
Expert Witness
–Can give opinions and make inferences within field of expertise.
–Even a properly qualified expert cannot proclaim the defendant negligent; that is the privilege of the jury.
–Expert Witnesses are often compelling and they are also often conflicting.
Does violation of internal policies mean that the company has breached their duty of care?
Internal rules, policies, practices, and procedures are admissible in court, but they are not the standard of care.
Failing to meet an internal policy is not failing to meet the legally recognized standard of care.
Is non-compliance with an industry safety custom dispositive of negligence?
No, non-compliance with an industry safety custom is not dispositive of negligence, but it can be used as evidence that negligence could have occurred.
EXCEPTION: Medical Malpractice is based on custom and deviation from custom is evidence of negligence in these cases.
What is Res Ipsa Loquitor?
“The thing speaks for itself” in Latin and it refers to an event that would not ordinarily occur without some kind of negligence (e.g., a barrel falling out of a window).
Do courts look at the plaintiff’s conduct when evaluating a Res Ipsa claim?
The court will look at what the plaintiff has done and not done in order to make the inference of negligence stronger when determining whether to rule based on Res Ipsa Loquitor or not.
Do courts generally give Res Ipsa Loquitur rulings if they have direct evidence of negligence?
Only if the direct evidence is an absolute proof that negligence occurred do courts not give a Res Ipsa Loquitur instruction.
What is required to satisfy the Negligence element of Harm?
The plaintiff must prove that there is some type of injury.
Is increased risk of harm an injury that satisfies the Negligence element of Damage?
The increased risk of harm is not injury and thus cannot be recovered for.
Does pure emotional distress satisfy the Negligence element of Damage?
Pure emotional distress is not considered injury and thus does not satisfy this element even though you can get pain & suffering for other Damage.
What is the Cause-in-Fact element of Negligence?
Cause-in-Fact is the element that shows that were it not for the defendant’s conduct, the plaintiff would not have suffered injury.
This can be shown with the But-for Test or the Substantial Factor test.
What is the But-for Test?
The idea behind But-for Causation is that the defendant’s conduct is a cause of harm, because the harm would not have occurred but-for the defendant’s conduct.
Example:
But-for John’s negligent driving, Sally would not have been injured.
Elements of a But-for Test
- The defendant needs to be a but-for cause
- The defendant must also be a negligent but-for cause.
Is Cause-in-Fact a Judge or Jury Question?
In most cases, Cause-in-Fact is a jury question.
What are some ways to establish causation?
Expert Testimony
Common Knowledge
Use circumstantial evidence (e.g., eliminate a series of other possible causes)
Res Ipsa Loquitur
When does Joint and Several Liability apply?
Joint and Several Liability generally applies when:
There is an indivisible injury
There is a concerted action
A creates a risk of harm by B (e.g., A runs over the plaintiff, leaving them unconscious in the street. B is driving after this and doesn’t see the plaintiff and runs over the plaintiff, killing them. Ais liable for both leaving the plaintiff in the street and for B running over the plaintiff, but B is only liable for running over the plaintiff).
A is vicariously liable for B’s acts.
If defendants are jointly and severally liable, how much can any one defendant have to pay?
Each defendant is fully liable for plaintiff’s injury and thus may have to pay 100% of it.
Can plaintiff collect more than a full recovery if the defendants are jointly and severally liable?
No, the plaintiff is limited to only collecting a full recovery.
When is it a good idea to use the substantial factor test?
When the but-for test seems to reach the wrong result, the substantial factor is a good solution.
Simultaneous/both negligent = liable (no liability under But-for).
–No liability under But-for test, because But-for test requires showing that but-for the defendant’s negligent conduct, the plaintiff wouldn’t have suffered injury. If the two parties act simultaneously, then the plaintiff still would have suffered injury and thus would not be able to recover.
Simultaneous/one negligent = liable (no liability under But-for)
–No liability under But-for Test for reason listed above, but because the negligent party is still a substantial factor in the harm suffered by the plaintiff, they could still be liable.
Sequential forces/one or both negligent = liable if defendant’s negligence is actual cause of harm (no liability under But-for)
–No liability under But-for for reasons listed above, but if the negligent acts are committed first, then there would be liability under the Substantial Factor test because it would be the Cause-in-Fact of the plaintiff’s injury.
Will defendants be jointly and severally liable for all injuries suffered by the plaintiff if there is loss of causal certainty?
If there is a loss of causal certainty, the burden of proof shifts to the defendants to prove that they did not cause the harm.
What is the Proximate Cause element of Negligence?
The Proximate Cause element of Negligence is Legal Cause and not the same as Actual Cause or Cause-in-Fact.
It requires the harm to have been foreseeable.
What is Loss of a Chance Doctrine?
Loss of a Chance Doctrine allows recovery for decreased chance of survival in Medical Malpractice cases.
Is Loss of a Chance Doctrine a majority doctrine?
It is a majority doctrine for Medical Malpractice, but there are a number of jurisdictions (roughly 13-14) that don’t accept the doctrine at all.
What is the Risk Standard?
“An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.”
EXAMPLE: Bob leaves matches out around his child. His child is a pyromaniac. He cuts the tips off, puts them in a brew, and drinks the brew, getting sick.
This is not foreseeable when Bob negligently left the matches out.
What is the Risk Rule?
Is the harm to the plaintiff within the scope of the risk that made the defendant negligent in the first place?
For Proximate Cause, does the manner of harm need to be foreseeable?
The majority of jurisdictions hold that a reasonable person need not foresee the manner of harm, only the general kind of harm.
For Proximate Cause, does the extent of the harm need to be foreseeable?
The majority of jurisdictions do not require the extent of harm be foreseeable (see Thin Skull Plaintiff rule).
For Proximate Cause, is the type of harm important?
Yes, the type of harm (e.g., injury to a specific body part) suffered is very important for Proximate Cause.
For Proximate Cause, is the class of plaintiff important?
Yes, the class of plaintiff is important.
What is the Rescue Doctrine?
Someone who is hurt can generally recover from the defendant whose negligence towards another or towards himself prompts the rescue.
How do you do a Proximate Cause Analysis?
Proximate Cause Analysis
Was the plaintiff foreseeable? Was the plaintiff within the class of persons who were foreseeably threatened by defendant’s conduct?
Was the type of harm foreseeable? Was the harm Plaintiff suffered the type of harm that made defendant’s conduct negligent to begin with?
Was the way in which the plaintiff was harmed within the scope of foreseeable consequences? Or was it merely that the manner of the harm was unforeseeable?
Was it merely that the extent of the harm was unforeseeable?
