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Flashcards in Negligence Deck (52):

What is the general principle of our laws (O.W. Holmes)

Loss from accident must lie where it falls


Legal elements of negligence

1. The defendant owed the plaintiff a legal duty
2. Defendant by acting negligently breached that duty
3. Plaintiff suffered actual damage
4. Negligence was an actual cause if this damage
5. Defendants negligence was a proximate cause of the damage


What is the standard of care in the negligence theory?

Exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstance to minimize harm


Is the standard of care in danger different?

No. The standard of reasonable care under the circumstances. Reasonable care in proportion to the danger involved in his act


What is the proper standard of care?

1. Reasonable or ordinary care under the circumstances.
2. If the foreseeable danger is high the reasonable person will exercise a greater degree of care


Are mentally disabled people held to a standard if reasonable care?

Yes. As a matter of public policy.
1. Provides incentives for those responsible for people with disabilities to prevent harm and restrain those who are potentially dangerous
2. Removes encouragement for accused tortfeasors to fake a mental disability
3. Removes problems in the courts with trying to identify and assess the significance of an actors disability.
4. Forces persons with disabilities to pay for damage they do.


Define the standard of a reasonable man

A minimum of attention, perception, memory, knowledge, intelligence, and judgement in order to recognize the existence of the risk. If an actor has MORE than the MINIMUM of these qualities he is required to use the superior quality in a manner reasonable under the circumstances .


Can a child be held to an adult standard?

Yes. When the activity a child is engaged in is inherently dangerous the child should be held to an adult standard.


Define inherently dangerous

Adult skills is required and operation is normally performed by adults


Define children negligence

A child accused of negligence is held to the standard of care of a reasonably careful child of the same age, intelligence, and experience


What is The rule of sevens?

1. Minors over 14 are presumed capable of negligence;
2. Those between 7-14 are presumed incapable of it
3. Those 7 and below incapable of negligence as a matter of law


Modern application of rule of 7

Children under 5 incapable of negligence.


What does the court mean when a decision is as a matter of law?

There is no room for reasonable jurors to differ about the conclusion and therefore the court directs a verdict


When is negligence per se applicable?

Applies ONLY to statues that declare conduct unlawful but are silent to civil liability (ex. Speeding is a crime punished criminally but not civilly therefore it applies)


When is a statue allowed to replace the common law duty of care?

When the statue or regulation:
1. Clearly define the define the required standard of conduct;
2. Intended to prevent the type of harm defendants act or omission caused;
3. Must be a member in the class of persons the stat./reg. was met to protect
4. Must have been the proximate cause of the injury


Is violation of a statue automatically implies negligence per se?

No. There are instances where violation is excused: a. The violation is reasonable in light of actors: childhood, physical disability, or physical incapacitation; b. the actor exercises reasonable care in attempting to comply with the statue; c. The actor neither knows nor should have known of the factual reasons the render the statue applicable; d. The actors violation is due to confusion in the language of the statue or compliance would invoke greater risk of physical harm to the actor than noncompliance.


Is negligence per se applicable to children?

No. A minors violation of a statue does not constitute proof of negligence, but may be used as evidence of a minors negligence


What is the Logic of proximate cause analysis

Whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other. A direct connection.


What is the Palsgraf standard of negligence?

The risk of harm must be measured within the range of apprehension. Wrongs are measured in terms of natural or probable when unintentional. "Scope of danger per professor Puhol"


What is the counter argument to scope of danger?

Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others it does not matter they are unusual, unexpected, unforeseen, or unforeseeable. As long as the damage is a proximate cause


The scope of risk who decides?

Is a question to the jury as reasonable beings can differ


What is a negligence?

Overt conduct that create unreasonable risk that a reasonable person would avoid.


Unreasonable risky behavior is?

A behavior that a reasonable and prudent person would FORESEE that harm might result and avoid that conduct which may cause that harm. It is to take reasonable precautions to prevent foreseeable harm to others


What is foreseeable verse unforeseeable

Foreseeable-the probability of harm is likely.
Unforeseeable-the probability of harm is great


Under the New Rule are Children ever held to an Adult Standard?

NEW RULE: When children are engaged in dangerous adult activities (e.g., driving a car, ), they are held to an adult standard of care


What is the old common law rule for children negligence?

OLD RULE: Children must exercise the degree of care that would be reasonable in a child of similar age, intelligence, and experience


Is mental deficiency held to less than a reasonable standard?

RULE RE MENTAL DEFICIENCY (MD): MD is no excuse; reasonable person standard applies to persons with MDs


IS a person physically disabled held to a reasonable person standard?

If the actor is physically disabled (e.g., deaf, blind), the applicable standard of care is that of a reasonable man under like disability.


Define Duty?



Recap: Elements of negligence are?

RECAP: the elements of negligence are: 1 duty, 2 breach, 3 actual damage (injury), AND 4 actual ("but for") AND proximate causation


List of Excuses to NPS (Negligence Per Se)

List of Excuses to NSP: Incapacity, Lack of knowledge, Diligence & care, Emergency, and Alternative hazard


4 Elements of NPS (Negligence Per Se.)

Negligence per se (NPS) has four elements: 1.The statute or regulation must clearly define the required standard of conduct; 2. The statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused; 3. The plaintiff must be a member of the class of persons the statute or regulation was designed to protect; 4. The violation must have been the proximate cause of the injury


If an injury is foreseeable does that automatically mean it is probable?

Just because an injury is foreseeable does not mean that it is probable. The probability of harm is only one factor we have to look at when deciding whether a given action is negligent. We must also consider what actions the defendant (or the plaintiff) could have taken to reduce or avoid the risk of harm.


What do we mean, we we refer to "foreseeable"?

Was the risk of harm “foreseeable”? Foreseeability refers to the probability or “risk of harm"


Explain Breach and negligence

Breach = Negligence = Want of Reasonable Care


Explain hand formula when deciphering risk

Bottom-line: Some risks are worth taking (when P times L is less than B); other risks are not worth taking (when P times L > B)


What is "B" in the hand formula

B or the burden component of the Hand formula refers to the cost of safety precautions: the cost of avoiding the accident


What is the "L" in the hand formula

or the loss component of the Hand formula refers to “the magnitude of the harm”


What is the "P" refer to in the hand formula?

P refers to “the risk of harm”: the probability that a particular act or omission will produce a harm


What is the plaintiff's burden of proof?

he plaintiff’s burden of proof is composed of two elements: The burden of production, The burden of persuasion. The burden of production refers to the burden of going forward with the evidence: Direct evidence, Circumstantial evid., Expert testimony The decision whether the plaintiff has met the burden of production is made by the court (e.g. summary judgment, directed verdict) Once plaintiff has met his or her burden of production, the jury then decides whether or not the plaintiff has met the burden of persuasion


What is Res Ipsa?

Res ipsa loquitur means “the thing speaks for itself” in Latin; three conditions must be met for res ipsa to apply: ELEMENT #1:The event or accident is of a kind that does not ordinarily occur in the absence of negligenceELEMENT #2:The instrumentality or agent that caused the accident was under the control of the defendant ELEMENT 3: Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence


What is the "but-for" test?

THE BUT FOR TEST: “The plaintiff would not have suffered actual damages but for the defendant’s negligent conduct.”


The probabilistic approach

PROBABILISTIC APPROACH: Instead of asking whether the defendant’s negligence was a "but for" cause of the accident we should ask whether the negligence of the defendant substantially increased the chance that the plaintiff would be injured


What is actual damage?

The plaintiff must prove that he or she suffered a “legally cognizable harm” or "actual damages" (i.e., actual harm)


Three elements of compensatory damages?

Recall the three elements of compensatory damages: Loss of wages or earning capacity, Past and future medical expenses, Pain & suffering


equential causes: suppose two neg.-set fires arrive sequentially; the 1st fire destroys PL's house before the 2nd arrives

he party responsible for the first fire, and only that party, can be held liable (assuming, of course, he or she was negligent)


What is contributory negligence recovery theory?

Under Comp. Neg., PL's recovery is reduced in proportion to his neg. (e.g., if jury finds PL 20% negligent, his recovery is reduced by 20%)


Define Contributory Negligence

CONTRIBUTORY NEGLIGENCE: Plaintiff’s negligence, however minor or slight, operates as a complete bar to recovery


What does contributory negligence mean to Plaintiff?

CONTRIBUTORY NEGLIGENCE AND COMPARATIVE NEGLIGENCE REFER TO THE PLAINTIFF'S BEHAVIOR (i.e., plaintiffs can be negligent too!!!) What is the effect of PL's negligence? Under Contrib. Neg., PL gets nothing !!!!


What is comparative fault?

The plaintiff recovery is reduced in negligence and strict liability cases proportionally to their fault. Each faulty party must bear his or her share of losses


Apportionment amongst defendants

Defendants spit the fault in proportion percentage of their fault (ex 80/20 with pay out to plaintiff respectively).


Joint a d severally liable?

Plaintiff can file claim against either tortfeasors.