Negligence

Question 1

Elements of Negligence

Answer 1

1) Duty
2) Breach
3) Actual Cause
4) Proximate cause
5) Damages

Question 2

Duty

Answer 2

you have a duty to act like a reasonable person under the circumstances to avoid/minimize harm to others
1) if you act, act reasonably to avoid or minimize harm to others
2) no general duty to act

Question 3

Hand Formula

Answer 3

• used for calculating breach
• formula is predictive and occurs before the actions takes place

Question 4

B

Answer 4

burden of avoiding the harm; cost of taking the precaution

Question 5

P

Answer 5

Probability that harm will be caused without the precaution

Question 6

L

Answer 6

the foreseeable severity of the harm likely to be caused / could be caused without precaution

Question 7

B < PL

Answer 7

a reasonable person would have taken the precautions
- failure to take the precaution is breach

Question 8

B > PL

Answer 8

the burden of taking the precaution outweighs the risk
- failure to take precautions is not breach

Question 9

Risk-Utility Balancing

Answer 9

Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done

Question 10

negligence

Answer 10

A person acts negligently if the person does not exercise reasonable care under the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood (P) that the person’s conduct will result in harm, the foreseeable severity (L) of any harm that may ensure and the burden of precaution (B) to eliminate or reduce the risk of harm

Question 11

Unstructured Risk-Utility Balancing

Answer 11

the likelihood that D’s conduct will cause harm and the amount of harm it will cause (if harm results). Those are weighted against the usefulness of the conduct and the cost of making it safer.

Question 12

Qualities of a reasonable person…

Answer 12

D will be judged against the standard of a reasonable person
- we also take into account traits and characteristics of D and the circumstances

Question 13

knowledge/expertise

Answer 13

• lower than average knowledge is taken into account, D should have known
• higher than average knowledge is taken into account

Question 14

Expertise

Answer 14

If D holds themselves out to have expertise, even if she doesn’t actually have the expertise, and the other person relies on that representation, D is held to the general knowledge and skill of an expert in that field

Question 15

emergency

Answer 15

• emergency situation is taken into account
• must not have been foreseeable
• must not have been caused by D and requires D to act instantaneously to avoid injury or collision
• if a reasonable person would believe it to be can emergency

Question 16

Majority emergency

Answer 16

jurors should receive an instruction that they are to take into account that the actor was faced with an emergency

Question 17

Minority emergency

Answer 17

Jury should be instructed that an actor must behave reasonably under the circumstances
lawyers should introduce evidence about the emergency and explain to the jurors that the emergency is part of the overall circumstances they can consider in deciding whether negligence exists

Question 18

Poverty

Answer 18

Can be taken into account if D has taken reasonable precautions

Question 19

Customary Practice

Answer 19

following or failing to follow custom is relevant but does not itself prove breach

Question 20

Physical characteristics

Answer 20

D is measured against the standard of a reasonably prudent person with his physical characteristics
- physical conditions (blindness)
- better-than-average strength
- sudden-onset conditions (stroke/heart attack)

Question 21

Mental Incapacity or Mental Illness

Answer 21

no allowance is made in negligence
- includes memory, judgment, emotional stability, intelligence, etc.
- old age is not taken into consideration unless it causes a physical problem

Question 22

Religious Beliefs

Answer 22

• does not make you automatically reasonable if you follow your religious beliefs
• courts typically refuse to regard an actor’s choice as reasonable simply because his or hers religion complies a given course of action

Question 23

Standard of Care for Children

Answer 23

A child’s conduct is breachy if it does not conform to that of a reasonably careful person of the same age, intelligence, or experience

Question 24

Standard of Care for Children Exception

Answer 24

a) A child younger than 5 years of age is incapable of negligence
b) The special rule in a) does not apply when the child is engaging in a dangerous activity that characteristically undertaken by adults
ex: a child is taking their parents’ car, driving it, and hits someone

Question 25

Standard of Care for Professionals

Answer 25

- one who represents herself to be a physician, cardiac surgeon, lawyer, or electrical engineer is held to the standard of knowledge and skills normally possessed by members of that profession - a professional cannot successfully argue that he acted based on the knowledge and skill that he actually had

Question 26

Professional Malpractice Cases

Answer 26

1) juries are incapable of determining the professional standard of care without expert testimony 2) the judge will not give the jury the normal "reasonable person" standard instruction; instead, did D act with the skill and knowledge normal to that profession

Question 27

Customary Practice for Medical Malpractice cases

Answer 27

Customary practice conclusively establishes the standard of care; AND compliance with that standard means D did not commit negligence (breach)

Question 28

Negligence Per Se

Answer 28

an actor is negligent if, without excuse, the actor violates a statute that is 1) designed to protect against the type of accident the actor’s conduct causes, AND 2) the accident victim is within the class of persons the statute is designed to protect (also has to be the right fit)

Question 29

Different ways States Handle Negligence Per Se

Answer 29

1) VOS majority rule 2) VOS like custom 3) VOS presumption

Question 30

NPS amorphous standards

Answer 30

* The less detailed the statute provides about specific conduct, the less likely it is to be imported into negligence per se. * Statute outline certain specific acts that would constitute a violation of the standard of care.

Question 31

Licensing statutes

Answer 31

- do not create a standard of care - can add evidence of what it takes to get a license but just not having the license is not breach

Question 32

Excuses to NPS

Answer 32

1) the violation is reasonable b/c of the actor's incapacity 2) he neither knows nor should know the occasion of compliance 3) he is unable after a reasonable diligence to comply 4) he is confronted by an emergency not due to his own misconduct 5) compliance would involve a greater risk of harm to the actor or to others

Question 33

Res Ipsa Loquitur

Answer 33

- an exception to this general rule that "proof of an accident is not enough to show breach." - where it applies, the accident itself is evidence of negligence (breach) - P does not have to specify what specific behavior was breachy

Question 34

RIL Test

Answer 34

If the D owes P a duty of care, the jury is permitted to infer that D was negligent in some unspecified way when, based on the evidence, there is a rational basis in common experience or expert testimony finding: 1. The injury was more likely than not the result of negligence; and 2. That the D was more likely than not at least one of the persons who was probably negligent * More likely than not is the standard (51%)

Question 35

Element 1 (RIL)

Answer 35

- the accident would not ordinarily happen without negligence - it is more likely than not that this accident resulted from negligence

Question 36

Element 2 (RIL)

Answer 36

- P has to put forward evidence showing that D was more likely than not one of the negligent actors - Can’t be applied unless evidence makes it clear that the D is one of the persons whose negligence caused the accident

Question 37

Forms of Evidence

Answer 37

Direct & circumstantial

Question 38

direct

Answer 38

first hand evidence of the thing you want to prove

Question 39

circumstantial

Answer 39

evidence of one fact offered to establish another fact

Question 40

Actual Causation

Answer 40

But-for causation D's negligence must be a but-for cause of P's harm - if not for D's breach, P's harm would not have occurred

Question 41

Knowable

Answer 41

there is evidence that it is knowable but is not present therefore there is a failure of evidence, and the court will not allow the jury to infer causation

Question 42

Not Knowable

Answer 42

we don’t know the alternative situation, therefore we will allow an inference of causation – "Where the negligence of the D greatly multiples the chances of an accident to the P, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of causation."

Question 43

Zuchowicz Two Pronged Test

Answer 43

If 1) a negligent act was deemed wrongful (breach) because that act increased the chances that particular type of accident would occur, and 2) a mishap of that very sort did happen, then this is enough to support a finding by the trier of fact that the negligent behavior caused the harm

Question 44

Failure to Warn

Answer 44

* When the risks of harm are generally obvious to a reasonable person, there is NO duty to warn of those risks. * When the risks are not generally obvious, but D proves that P knew of the danger, there is no causation. * Even if P did not know of the risk, breaching D escapes liability by proving that P would not have read and headed a warning, had one been given.

Question 45

Daubert Factors

Answer 45

- scientific standard for expert testimony 1) Whether the theory or technique can be and has been tested 2) Whether it has been subjected to peer review and publication 3) Its known potential error rate 4) The existence and maintenance of standards controlling its operation 5) Whether it has attracted widespread acceptance in the specific scientific field

Question 46

Loss of Chance

Answer 46

* Most states allow loss of chance claims to reach the jury even when the P cannot prove that the D was more likely than not, the cause of P’s harm. (majority rule)

Question 47

Joint & Several Liability

Answer 47

Where separate acts of negligence combine to produce directly a single injury, each tort-feasor is responsible for the entire result, even though his act alone might not have caused it

Question 48

J/S 2 situations

Answer 48

1) D’s acted independently but caused indivisible harm 2) D’s acted in concert

Question 49

Multiple necessary causes

Answer 49

Each party (breach) is necessary to cause total harm. Each breach in isolation does not cause harm.

Question 50

Indivisible Harm

Answer 50

indivisible consequences of the parties’ independent breachy acts, multiple but-for causes may exist

Question 51

Concerted Action

Answer 51

When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.

Question 52

A person acts in concert when...

Answer 52

1) Pursue a common plan, 2) Actively take part in it, 3) Further it by cooperation or request, 4) Lend aid or encouragement, or 5) Ratify and adopt the tortious acts done for their benefit.

Question 53

Court requires two things in concerted action...

Answer 53

1) A must know of the underlying wrongful conduct of B (or should have known) 2) A's assistance or encouragement must be a substantial factor

Question 54

J/s liability occurs in two situations:

Answer 54

1) D acted independently but caused indivisible harm 2) D acted in concert

Question 55

Effect of J/s

Answer 55

P may sue any one or more of the potential D's in a single action but it is not required (joint) D liable is responsible for the full injury suffered by P (several) P is entitled to only one recovery

Question 56

Several Liability

Answer 56

refers to D being responsible only for her share of the injury

Question 57

Multiple Sufficient Causes

Answer 57

Where two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it, regardless of the other, they are both causes of the injury. Each breach in isolation does cause harm.

Question 58

Alternative Liability

Answer 58

multiple breaching Ds in front of the court and the court shifts the burden to the Ds to prove that each one did not individually cause the harm

Question 59

Proximate Cause

Answer 59

limits Ps liability to the foreseeable harm; "scope of liability"

Question 60

proximate cause restatement

Answer 60

An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious. [reasonable foreseeability]

Question 61

Does the exact manner of harm matter?

Answer 61

- courts do not require that the details of how D's negligence actually injures P to be foreseeable, it only matters that the accident is foreseeable - what makes the activity dangerous? ex: severe skin burns vs. work place explosion

Question 62

Thin Skulls in Negligence

Answer 62

where a particular type of injury to P is foreseeable, D is liable for the injury sustained even though it is more serious than he (or a reasonable person) might have anticipated - courts treat as "foreseeable" any misfortunes that befall victims as a direct result of seeking medical care for the injuries suffered in the accident caused by the D's negligence

Question 63

Direct cause

Answer 63

*minority approach* - alternative to foreseeability - sometimes "natural and probable consequences" - very related to "but-for" causation

Question 63

NPS and Proximate Cause

Answer 63

If you satisfy element 2 of NPS (the harm was the kind the statute sought to prevent) you automatically have foreseeability

Question 64

Superseding Causes

Answer 64

P breaches --> INTERVENING ACT --> P harmed Definition: An act - person or event - that is so bizarre, unexpected, unusual, etc. (unforeseeable) that it breaks the proximate cause chain.

Question 65

Rescuer Doctrine

Answer 65

- D is liable for rescuers injuries if it foreseeable that a rescuer would intervene - so long as the rescuer's response is "normal" the negligent actor will not escape liability

Question 66

Acts of God

Answer 66

- D's negligence combines with storm, fire, tornado, etc. to create damages Majority: depends of whether the "act of god" was foreseeable

Question 67

Kinds of Compensatory Damages

Answer 67

- lost earnings - lost earning capacity - medical expenses - pain & suffering - other (loss of enjoyment of life, etc).

Question 68

Lost earnings

Answer 68

between the accident and trial (includes promotions that were likely)

Question 69

Lost earning capacity

Answer 69

going forward, how long P would have worked, additional education

Question 70

Medical Expenses

Answer 70

Past are easy to prove; future are harder - single recovery rule

Question 71

Pain and Suffering

Answer 71

- subjective reaction to accident and consequences; includes anxiety, grief, and pain - eggshell skull comes in here to extend the damages

Question 72

Punitive Damages

Answer 72

- usually have to prove liability by more than a preponderance of the evidence (clear & convincing) - usually involves willful, reckless, or malicious conduct. Requires worse mind than negligence - often capped in the jurisdiction

Question 73

Assumption of the risk 3 types

Answer 73

1) express assumptions of the risk 2) primary implied assumption of the risk 3) secondary implied assumption of the risk

Question 74

Express Assumptions of the Risk

Answer 74

- typically written (waivers & contracts) - typically enforced by courts and is a complete defense (D had no duty) - consent must be freely given; not valid if extracted from someone with relatively little bargaining power - must clearly consent to accept the specific risk or waive the specific claims

Question 75

Primary Implied Assumption of the Risk

Answer 75

- D has offered P an activity he is under no duty to offer, and P is under no duty to accept (complete defense) Certain unavoidable risks go along with it. By participating, P considers the tradeoff worthwhile and accepts the risk. - P implicitly accepts well-known incidental risks associated with or inherent in an activity or game - if implied assumption of the risk is found to apply, the court should rule that D had not duty

Question 76

Secondary Implied Assumption of the Risk

Answer 76

D is engaged in risky/breachy behavior. He owes P a duty. But P is (or should be) aware of the risks associated with D's risky behavior, and P engages in the conduct/activity anyway. - D can raise this defense by asserting that P acted unreasonably by engaging in a known risk - This just becomes a case of comparative negligence: Evaluate the negligence case for both parties, and then the jury is asked to compare responsibility.

Question 77

Contributory Negligence

Answer 77

*minority rule* - any responsibility on P's part completely bars recovery

Question 78

Pure Comparative Negligence

Answer 78

*Minority rule* - an injured party may recover regardless of his degree of fault but his recovery is reduced by his percentage of fault. No limits or bars exist

Question 79

Modified Comparative Negligence

Answer 79

*majority rule* - 50%-bar states: P cannot recover if he is 50% or more responsible. - 51%-bar states: P cannot recover if he is more responsible than D. - If parties equally responsible, P would recover in this case.

Question 80

What if there is more than one D?

Answer 80

- Minority: P is barred from recovering against each D - Majority: P may recover against either D - Usually expressed: P's fault must be less than combined fault of Ds.