Negligence Flashcards
(37 cards)
Learned Hand Formula
B>PL
When severity of injury (L) times the probability of injury (P) is less than the burden to implement precautions (B) that may eliminate or reduce the probability of injury, then there is no liability for negligence
Reasonable Person Standard
(1) Did the defendant owe a duty to the plaintiff? What was that duty?
(2) If yes, did the defedannt breach that duty by failing to use reasonable care?
Duty of a Child
Exercise same care that a reasonably careful child of same age, maturity, training, and experience would exercise under the same or similar circumstances
Adult v. Child Standard of Care
(1) an activity characteristically undertaken by adults
(2) activity is dangerous
Professional Standard of Care
One who engages in a business, occupation, calling, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care.
Customs (Trimarco v. Klein)
Evidence of customary practice and usage may be used as evidence of what a reasonable person would do in the same circumstance.
Emergencies (Cordas v. Peerless)
A person in an emergency is not expected to exercise the same standard of care as someone who is not an emergency
Lawyers Duty
Lawyers are not held liable for their harms when acting in their best judgment. Lawyers liable for damages resulting from a lack of knowledge and skill ordinarily possessed by other attorneys. They will not be held liable for mere error of judgment or mistake in unsettled law.
Attorney duties:
Learning/skill/ability
Best judgment
Ordinary and reasonable diligence
Keep causation in mind: “But for” the negligence of the attorney, the client would have recovered
Doctors Duty
National Standard, given they are certified by national board. Used to be localilty rule, but is its dead.
Informed Consent (elements)
(1) Defendant physician failed to inform patient adequately of material risk before securing consent for treatment
(2) if plaintiff informed of the risks would not have consented
(3) Adverse consequences not made known to plaintiff occurred as a result of treatment
**Failure to demonstrate negligence, but this does not mean that there is not a case for battery here.
Reasonable patient standard
whether a “reasonable patient” would have been appropiately informed and consented
Reasonable physician standard
whether a reasonable physician in same cirumcstances would disclose for procedure
Negligence Per Se (NPS)
(1) the injury is done to a member of the class of persons the statute was meant to protect
(2) the harm is of the kind which the statute or regulation was enacted to prevent
(3) Whether it is appropriate to impose tort liability for violations of the statute
NPS Excuses
Excuses (Restatement Section 288A):
(1) The violation is reasonable because of the actors incapacity
(2) He neither knows nor should know of the occasion for compliance
(3) The person is unable after reasonable diligence or care to comply
(4) He is confronted by an emergency not due to his own misconduct
(5) The compliance would involve a greater risk of harm to the actor or to others.
Constructive Notice
]Constructive notice assumes that if the defendant was taking reasonable care, they would have had actual notice of a hazard, so they are treated as having actual notice.
Res Ipsa Loquitur
(1) the Event is of a kind which ordinarily does not occur in the absence of negligence
(2) Other responsible causes, included the conduct of the plaintiff and the third persons are sufficiently eliminated by evidence /OR/ the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant.
(3) Indicated negligence is within the scope of the defendant’s duty to the plaintiff
But-For
The but for test for actual causation is satisfied where (1) the defendant’s negligent conduct happened before the injury, and (2) the injury would not have occurred absent the defendant’s negligent conduct.
Concurrent Causes
(1) multiple acts or forces combined to cause an injury and
(2) none of the forces, standing alone, would have been sufficient to cause the injury
Substantial Factor
The substantial factor test is used where multiple forces converge at the time of the plaintiff’s harm, and where each of the multiple forces would have been sufficient to cause the harm. Under this test, a defendant’s conduct is an actual cause of the plaintiff’s injury if the defendant’s conduct alone would have caused the injury, even though another act or force would have independently caused the injury in the absence of the defendant’s conduct.
Alternative Causes
Where two or more agents are negligent to a third who is injured thereby, both of those negligent are liable for the injury although only one of them could have caused it.
PALSGRAFF
Majority/Cardozo view of Prox. Cause: Liability only in the zone of reasonably foreseeable harm resulting from the defnedants actions.
Andrews View: Duty is to the public, liability for negligence as long as there is a natural and continuous sequence between cause and effect
Superseding Cause
“Something that breaks the foreseeable sequences of consequences, such that proximate cause can no longer be satisfied, cutting off liability.”
Eggshell Skull
If harm is foreseeable, the harm is not beyond the scope of risk just becasue a defednat could not foresee the extent of the harm.
Forseeability Factors
(1) When a reasonable person would take action to avoid harm;
(2) If a reasonable person would anticipate risk, then defendant liable
(3) Defendant liable for consequences that are foreseeable at the time of negligent conduct
(4) What risk is created and how much burden to eliminate
(5)How easy to avoid risk
