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Flashcards in Negligence Deck (30)
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Negligence - Elements

Act or failure to act
Duty of care
Breach of duty
Causation in fact
Proximate causation


Duty of care standard

Reasonable prudent person


Duty - knowledge

Cannot escape liability by arguing defendant was unaware of a fundamental risk.

Example - Cannot escape liability of an accident caused by bald tires by arguing defendant did not know his tires were bals


Duty - Custom

Violation of a custom may be used as evidence of negligence but is not dispositive


Duty - Determining liability

Liability depends on whether the burden of care is less than the probability of the incident combined with the Gravity of the resulting injury

Learned Hand's balancing Test - (B)urden (P)robability (L) injury

Liability = B < P x L


Duty - Considerations CA courts take for determining liability

- Foreseeability
- Degree of certainty
- Closeness of connection between defendant's conduct and injury suffered
- Moral blame attached to defendant's conduct
- The policy of preventing future harm
- Extent of burden to defendant and consequences to the community
- Availability cost


Duty - Emergency exception

In an emergency, one is not held to the same standard as when he has the opportunity for deliberate action.

However, is Defendant created emergency, or it was reasonably foreseeable, then it does not apply


Duty - Children

Children are held to the standard of an ordinary prudent child of the same age, intelligence, and experience.

When a child engages in an activity that is inherently dangerous, he is held to the standard of an adult.


Duty - Physical handicap

Reasonable prudent person with that handicap


Duty - Mental disability

Typically held to same standard as anyone else.

To vitiate negligence - the affect of the mental illness must be such as to affect the individual's ability to understand and appreciate the duty; OR of mental illness does not affect such understanding, it must affect his ability to control his actions in an ordinary prudent manner.

No notice or forewarning


Duty - Expert

One who holed himself out to be an expert will be held to the standard of care of an expert.


Duty - Attorneys

Impliedly represents to his clients that he possesses the requisite degree of skill, knowledge, and ability necessary to practice

He must Exert his best judgment in the prosecution of the litigation; AND will exercise reasonable and ordinary care


Duty - Medical Professionals

JXL Split

Majority - National standard - The degree of reasonable skill and care expected of medical professionals in the same or similar circumstances

Minority - Locality Rule - What a doctor in a similar locality would do


Informed consent

An understanding of a decision based on adequate information about the treatment, available alternatives, and collateral risks.

Must disclose - All information that a reasonable patient would want to make a decision - Newer standard majority of jurisdictions.


Informed consent - exceptions

No need to disclose what aught to be known by everyone, or what the plaintiff already knows


Reasonable physician v. Reasonable patient

Reasonable physician standard - OLD RULE - must disclose what a would a reasonable physician would find necessary to disclose.

Reasonable Patient Standard - NEW Rule - Must disclose what a reasonable patient would want to know to make informed decision


Negligence per se

Shortcut to determine negligence

- Based on applicable standards set by a court to show actions are deemed to be negligent
- Still need to prove negligence

- Statutes only become standards when a court decides to apply it as such

- Statutes cannot create duty where it doesn't exist, can only define a duty relationship


Negligence per se - Courts will not apply statute when?

Purpose is exclusively:
(1) to protect the interests of the state or any subdivision
(2) To secure to individuals the enjoyments of rights or privileges to which they are entitled to only as members of the public


Breach - Constructive notice

When a hazard is present long enough for a reasonable party in the circumstances to be aware of it, they are deemed to have constructive notice of the hazard.

Actual evidence - Logs, witnesses

Circumstantial evidence - Banana peel cases

Plaintiff bears burden of proving constructive notice


Breach - Unreasonable risk of harm

When operation methods make dangerous situations common, continuous and reasonably foreseeable, notice is no longer required for liability.
-Actual nor constructive notice is required.


Res Ipsa loquitur

The thing speaks for itself

Can only use when no evidence of negligence


Res Ipsa Loquitur - Required

(1) Accident
(2) The thing or instrumentality that caused the accident was, at the time and prior thereto, under exclusive control of the defendant
- Some jurisdictions have changed this to - "Other reasonable causes, including the conduct of plaintiff or 3rd person, are sufficiently eliminated by evidence)
(3) The accident was such that would not ordinarily occur if the defendant was using due care
(4) come jurisdictions require defendant to have superior knowledge of situation


Res Ipsa Loquitur - Liability?

Does not automatically mean defendant is guilty, simple allows plaintiff an explanation of injury, which jury can accept or deny


Causation in fact - substantial factor

Typically courts require likelihood of causation to be at least 51%

Medical situations - Loss of a chance doctrine - Liable if negligence caused a substantial decrease in likelihood of survival, even if it was under 51%. Some jurisdictions require at least 10% drop in survival likelihood


Causation in fact - Multiple defendants

Multiple defendants commit negligent acts that combine to cause harm, that would not have occurred without both acts of negligence - jointly and severally liable.

Multiple defendants commit negligent acts but either would have caused damage on its own - either defendant is liable as long it was substantial factor

Multiple defendants commit negligent act, do not know which one actually harmed plaintiff - Both defendants are liable unless they can prove they weren't the one who caused harm.


Proximate causation - Damages foreseeability

The foreseeability of the magnitude or exact type of damages is not required, simply that some damages was foreseeable


Proximate causation - Intervening cause

An intervening cause is one that actively operates in producing harm to another after the actor's negligent act or omission had been committed

Does not break causal chain


Proximate causation - Superseding cause

A superseding cause is an act of a 3rd person or other force that is so powerful that it breaks the causal link between the original actor and the injury suffered


Superseding cause - factors considered?

1) The fact that its intervention caused a different kind of harm than that which otherwise would have resulted from the negligence

2) The fact that its operation, or consequences thereof, appear after the event to be extraordinary rather than normal

3) the fact that the force is acting independently of any situation caused by the actor's negligence

4) The fact that the operation of the intervening force is due to a third person's failure to act/ not act

5) The degree of culpability of a wrongful act of a third person which sets the intervening act in motion


Rescue Doctrine - 4 elements

1) D was negligent and the negligence caused the peril or appearance of peril

2) Peril, or apparent peril, was imminent

3) A reasonable prudent person would have concluded such peril existed

4) The rescuer acted with reasonable care