Negligence

Question 1

What are the elements of negligence?

Answer 1

1. a duty of reasonable care
2. breach of duty
3. causation
4. damages

Question 2

What are all of the steps for assessing negligence?

Answer 2

1. do you owe a duty to this plaintiff?
2. did you have a duty to act?
3. if so, what is the standard of care owed to them?
4. did you fail to conform with the standard of care?
5. were you the actual cause of the harm?
6. were you the proximate cause of the harm?
7. were there damages?
8. if so, what type of damages were there?
9. did the defendant assume the risk?
10. was the defendant comparatively negligent?
11. are you immune from suit?

Question 3

What are the two questions to assess duty?

Answer 3

1. do I owe a duty to this person?
2. if so, what standard of care do I owe them?

Question 4

Who do you owe a duty to?

Answer 4

1. Cordozo says that you only owe a duty to foreseeable plaintiffs
2. Andrews says you have a duty of reasonable care to society as a whole

Question 5

Under what circumstances do you have a duty to act?

Answer 5

1. when you have assumed a duty
2. when you have imperiled someone (this duty extends to their rescuer)
3. there is a special relationship

Question 6

What is the standard care for an adult?

Answer 6

How a reasonably prudent person would act under the circumstances.

Question 7

What is the standard care for an minor?

Answer 7

The standard behavior expected from a child of like age, intelligence, and experience.
Except when participating in adult activities.

Question 8

What is the standard care for an elderly person?

Answer 8

How a reasonably prudent person would act under the circumstances.

Question 9

What is the standard care for a person with mental disabilities?

Answer 9

How a reasonably prudent person would act under the circumstances.
Except when the mental disability was not foreseeable.

Question 10

If there is no forewarning to the mental episode, what should be assessed?

Answer 10

1. whether the defendant had control over their own actions during the psychotic episode
2. whether the defendant understood during the psychotic episode that they should not take the action
3. whether the defendant had previous psychotic episodes

Question 11

What is the standard care for a person with physical disabilities?

Answer 11

How a reasonably prudent person similarly afflicted would act under the circumstances.

Question 12

What duty is owed to a trespasser?

Answer 12

When the landowner knows there are trespassers, there is a duty to warn them of known, man-made hazards that are likely to cause harm

Exception: children and an attractive nuissance

Question 13

What duty is owed to a licensee?

Answer 13

The landowner must warn of known hidden or concealed dangers, regardless of if they are natural or man-made, but otherwise has no duty to keep them safe

Question 14

What duty is owed to a invitee?

Answer 14

1. The landowner has a duty of reasonable care - the same as non-premises liability.
2. This may require more than just warning about dangers. The landowner may be required to make inspections to learn about potential hazards and correct them.

Question 15

What are the options for establishing breach of duty?

Answer 15

1. failure to conform with the duty of care (risk-utility test)
2. the role of custom
3. negligence per se
4. res ipsa loquitur

Question 16

When has a defendant failed to conform with the standard of care?

Answer 16

1. when a reasonably prudent person would recognize a risk of harm
2. the risk outweighs the utility of the act

Question 17

What is Learned-Hand’s risk-utility test?

Answer 17

B = burden of precautions
L = liability if the risk occurs
P = probability of occurrence
B < LP then liability / breach
B > LP then no liability / breach

Question 18

What is the role of custom in determining if a duty was breached?

Answer 18

Custom is a factor, but it is not determinative

Question 19

What is negligence per se?

Answer 19

Negligence per se holds that a defendant who violates a statute is negligent as a matter of law.

The statute becomes the standard of care, so in violating the statute, they breached the standard of care.

Question 20

What is the test for negligence per se?

Answer 20

1. was the statute designed to protect this time of plaintiff?
2. was the statute designed to protect against this type of harm?

Question 21

What are the five theories of actual causation?

Answer 21

1. but for
2. concert of action
3. substantial factor
4. alternative liability
5. market share

Question 22

What is the “but for” theory of causation?

Answer 22

But for the defendant’s negligent act, the harm would not have occurred

Question 23

What is the “concert of action” theory of causation?

Answer 23

When the defendant encouraged or induced the other to commit a tort

Question 24

What is the “substantial factor” theory of causation?

Answer 24

When there are two concurrent harms, each of which would have been sufficient to cause the entire injury

Question 25

What is the "alternative liability" theory of causation?

Answer 25

When two or more persons are possibly the sole cause of the harm

Question 26

What is the "market share" theory of causation?

Answer 26

When liability is apportioned against a set of defendants according to their respective market shares of sales of a harmful product during the period that the harm occurred

Question 27

What are the elements required to establish proximate cause?

Answer 27

1. foreseeable plaintiff 2. foreseeable defendant 3. foreseeable intervening causes

Question 28

What are the two types of damages?

Answer 28

1. punitive: damages designed to punish the defendant for particularly egregious behavior 2. compensatory: damages designed to compensate the plaintiff and represent the amount of money required to make them whole

Question 29

What are the two types of compensatory damages?

Answer 29

1. pecuniary (economic) 2. non-pecuniary (non-economic)

Question 30

What are pecuniary damages?

Answer 30

Expenses the plaintiff incurs as a result of their harm (ex: medical expenses, lost wages)

Question 31

What is the collateral source rule for pecuniary damages?

Answer 31

The fact that damages are covered by a third party does not affect the defendant's liability

Question 32

What are non-pecuniary damages?

Answer 32

Damages for things that are lost but non-monetary in nature

Question 33

What is pain?

Answer 33

The physical pain that the plaintiff experiences from their injuries

Question 34

What is suffering?

Answer 34

The psychological pain that the plaintiff experiences due to their condition

Question 35

How can liability be allocated when there are multiple tortfeasors?

Answer 35

1. joint and several liability 2. proportionate liability

Question 36

What is joint and several liability?

Answer 36

Where there are several concurrent negligent causes, the effects of which are not separable, and any of which is sufficient to produce the entire loss, all are jointly and severally liable for the entire loss

Question 37

What is proportionate liability?

Answer 37

The court will assess the percentage of fault of each defendant and only hold a defendant liable for their percentage of the plaintiff's harm

Question 38

What are the defenses to negligence?

Answer 38

1. contributory negligence 2. comparative negligence 3. assumption of the risk 4. immunities

Question 39

What is contributory negligence?

Answer 39

The plaintiff's failure to use due care for their own safety is considered a complete bar to recovery

Question 40

What is comparative negligence?

Answer 40

Comparative negligence reduces the damages the plaintiff actually recovers based on their own negligence

Question 41

What are the two types of comparative negligence?

Answer 41

1. pure comparative negligence: the plaintiff can recover unless they are 100% at fault 2. modified comparative negligence: a plaintiff whose percentage of negligence reaches a certain level is totally barred from recovery

Question 42

What are the two types of assumption of the risk?

Answer 42

1. express: the plaintiff, in words or writing, agrees not to hold the defendant liable for certain harms 2. implied: the plaintiff has voluntarily encountered a known risk

Question 43

What is primary implied assumption of the risk?

Answer 43

The plaintiff assumes the risk inherent in an activity, knowing that others don't have a duty for their safety (ex: playing football)

Question 44

What is secondary implied assumption of the risk?

Answer 44

The plaintiff is told about the risk and voluntarily engages in the activity regardless (ex: bungee jumping)

Question 45

What are the types of immunities?

Answer 45

1. family: parents are immune from suit by their minor, unempancipated children 2. governmental: the immunity to liability of governmental agencies for torts committed by their agents and employees

Question 46

What is res ipsa loquitur?

Answer 46

A doctrine that allows a plaintiff to meet the plaintiff’s burden of proof on the element of breach without showing what the defendant actually did wrong. It states that the harm could not have occurred without negligence.

Question 47

What are the requirements for res ipsa loquitur?

Answer 47

1. the accident must be of a type that normally does not occur in the absence of negligence 2. the instrumentality that caused the accident was within the exclusive control of the defendant 3. the plaintiff did not contribute to his or her own harm