Negligence Flashcards
(52 cards)
Elements of negligence
- The defendant had a duty to uphold a standard of ordinary, reasonable care to another;
- the duty was breached;
- actual harm occurred;
- the harm that occurred was factually caused by the negligence of the defendant; and
- the harm that resulted was within the scope of liability of the defendant’s negligence.
Proving breach (define)
A duty is breached if it is reasonably foreseeable that the actor’s conduct will cause harm to someone else and a reasonably prudent person would have taken action to avoid or mitigate the risks.
Proving breach (methods)
- B<PL
- Notice and opportunity to cure (employee caused, constructive knowledge, actual knowledge, mode of business operation)
- Deviance from industry standard
- Common sense weighing of plaintiff’s alternatives to defendant’s actions
- Negligence per se
Negligence per se
Statute must establish a standard of care.
Defendant violated the statute.
The defendant’s violation of the statute must have caused the harm.
The plaintiff must be a member of the class of persons the statute is intended to protect. The harm that occurred must be within the class of harms the statute is intended to prevent.
Harm requirement
Must have legally cognizable injury before a plaintiff can recover for non-physical harms (emotional/economic damages, pain and suffering)
Proving factual causation (methods)
- “But for”
- Duplicative/multiple sufficient causes
- Increased risk showing causation
- Substantial factor
- Alternative causes/Summers v. Tice
Proving scope of liability
Scope of the risk test: An actor’s liability is limited to those harms which made the actor’s conduct tortious in the first place. If an actor’s tortious conduct imperils another, the scope of liability extends to any harms that befall a rescuer that result from their attempts to aid or protect the imperiled person, so long as the harm arises from their efforts to aid the imperiled person.
Policy reasons behind scope of liability:
-Least cost avoider
-Other more culpable actor
-Encourage others to get appropriate insurance
-Encourage people to adopt risk-minimizing behaviors
“But for” causation
Replay the scenario, substituting D’s negligent conduct with non-negligent conduct. If the harm doesn’t occur, D’s negligence was the “but for” cause of the harm.
Increased risk showing causation
D’s failure to implement some safety precaution increased the risk of harm occurring. If not for D’s negligence, accident still might have happened, but D’s negligence increasing the risk can be used to show causation.
-Can be infinite causes of P’s harm (not all need be tortious)
Duplicative/multiple sufficient causes
If multiple causes simultaneously caused harm to P, and each would have been capable of causing the same/similar harm on their own, P can prove factual causation. The only reason each fails the “but for” test is because of the other(s).
-requires 2+ causes (not all need be tortious)
Substantial factor causation
Plaintiff would not have suffered injury but for the defendant’s conduct OR the defendant’s conduct was one of multiple causes sufficient to cause the alleged harm, even if another was also a substantial factor. Helpful when we have multiple negligent actors but it is not clear what contribution each had.
-Varies by jx
-Probably at least 2 causes of P’s harm (not all need be tortious)
Summers v. Tice causation
When there are multiple possible causes of P’s harm and we cannot prove which caused the harm, we can hold both liable. All potential sources of harm must be negligent. Not all can be the actual cause but one definitely is.
Preemptive causation
When another (non-)negligent cause causes harm before D’s actions could cause the harm, D is not liable (even if they were negligent).
Res ipsa loquitur
When a plaintiff cannot find evidence of the defendant’s negligence but the harm would not have ordinarily occurred without the defendant’s negligence, the jury can be instructed to presume negligence. Must show:
1. The thing that injured the plaintiff was under exclusive control of the defendant
(a) or within the control of the defendant at the time of probable negligence
(b) or that the defendant had the right, authority, or responsibility to control the thing at the time of probable negligence
2. The accident is not one that would normally occur without negligence on the part of the defendant
3. Circumstances show that the plaintiff’s own negligence did not contribute to their own injury
Intervening or subsequent CRIMINAL acts
Two modern approaches: Consider the defendant’s negligent act…
1. Was someone else’s criminal act within the scope of the defendant’s risk? A negligent defendant is not relieved from liability by the intervening acts of a third party if those acts were reasonably foreseeable by the defendant at the time of the negligent conduct.
2. Were the physical harms more generally within the defendant’s risk? A negligent defendant is not relieved from liability from the consequences of some criminal act if the harm that was caused is the same type of harm that made the act negligent.
Intervening or subsequent acts of NEGLIGENCE
Apply the scope of the risk test, along with the policies behind scope of liability.
Contributory negligence and comparative fault apportionment of fault schemes
Three apportionment of fault schemes
1. Contributory negligence
2. Pure comparative fault (CA)
3. Modified comparative fault
Defenses to negligence
- Contributory negligence
- Assumption of the risk
Contributory negligence approach to apportionment of fault
All or nothing–plaintiff was contributorily negligent=>no recovery (only 5 jx)
Pure comparative fault approach to apportionment of fault
Plaintiff can recover, minus portion of their own fault (CA approach)
Modified comparative fault
2 approaches:
1. Plaintiff can recover proportionally from defendant, so long as plaintiff’s fault is less than or equal to the defendant’s
2. Proportionate recovery if plaintiff is less than 50% at fault
Assumption of the risk
Affirmative defense to negligence that states a plaintiff cannot (fully) recover damages from a defendant if the plaintiff voluntarily accepted the risk of injury. There are two types: express (contractual) and implied.
Express assumption of the risk
Plaintiff signed a contract that purports to waive the defendant’s liability. Ask:
1. Can this defendant waive liability?
2. Can this act/state of mind of the defendant be waived?
Types of defendants that can NOT waive liability by contract
**Apply as balancing test
-Businesses subject to public regulation
-Essential services (providing practical necessity)
-Asymmetric bargaining strength (activity puts plaintiff functionally under the control of the defendant, with no ability to protect themself or avoid harm)
-Services generally offered to the public
-Standardized adhesion contract (take it or leave it)
-No option to negotiate for due care by paying more money
