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Nippon (Torts) > Negligence > Flashcards

Flashcards in Negligence Deck (26)
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1

Definition of Negligence

A person acts negligently if the person does not exercise reasonable care under all circumstances

2

4 elements of negligence

1 - duty - standard of care - standard is a reasonably prudent person
2 - breach (heart of negligence) - did D breach his duty/deviate from the standard of care?
3 - causation - did the breach of duty cause damages?
4 - damages - there must be truly actual compensatory damages for there to be negligence

3

what reasonable precautions does an individual have a responsibility to take when dealing with dangerous instruments such that the risk of injury posed by the instrument does not outweigh its utility?

1 - purpose for which they are used
2 - the probability of injury
3 - the precautions necessary to prevent such injury
4 - the relations such precautions bear to the beneficial use of the premises

4

L x P > B

Injury x Probability is greater than burden - negligent

5

The standard of care is...

the reasonably prudent person standard

6

is the standard of care objective or subjective?

objective

7

Standard of Care and physical disabilities

If someone has a physical disability, you insert the physical disability into the standard of care

8

Standard of Care and mental disabilities

If someone has a mental disability, you do NOT add this into the standard of care

9

Standard of Care for drivers

Drivers have a duty to investigate and maintain their vehicles that may become dangerous when their dangerous condition could be found through a reasonable inspection

10

Standard of Care for new drivers v. old drivers

Held to the same standard!

11

Standard of Care for individuals with superior skills

If P finds out that D is a specialist and for example, they are doing a medical procedure, then they would be held to a higher standard if it turns out that the doctor did not disclose an important illness or some factor that would affect a surgery

12

Custom and Standard of Care

P may offer evidence of custom, common usage, and practice in making his case for negligence

Universality - the practice does not need to be universal but it should be fairly well defined

13

Emergency situations and SoC

D only needs to act like a reasonably prudent person confronted with the same emergency

14

Child involved in an inherently dangerous activity and SOC

A child may be held to a higher adult standard of care when the child is engaged in an inherently dangerous activity for which the adult standard should apply

15

SOC for minors with superior intelligence

subjective test - if a minor D is more intelligent or less intelligent, they will be held to a degree of care that similarly intelligent minor Ds would exercise

16

Definition of Malpractice

negligence done by a professional acting in the scope of his profession

17

SoC for Professionals - average?

No, because a below average professional could still provide a minimally prudent standard of care

18

Basic Principle of SoC for professionals

reasonable prudent person takes on the profession of the actor and an objective standard is applied

19

SoC for lawyers

A lawyer is not liable for a mere error in judgment if they use reasonable care and diligence that other lawyers would use

20

national standards v. local standards

When there is a nationally certified professional, they have to comply with national standards not local standards

(architects, lawyers, doctors)

21

Rule statement for negligence

An action for negligence requires the plaintiff to prove to a jury by a preponderance of evidence that the defendant had a duty, he breached that duty, and that the breach both actually and proximately caused the plaintiff’s actual damages

22

Zone 1 for Negligence

Case starts here. If P does not produce any evidence in support of her prima facie case

23

Zone 2 for Negligence

If P comes forward with enough evidence in support of her prima facie case - case will go to jury

24

Zone 3 for Negligence

P's case is so strong that unless D comes forward with rebutting evidence, the court will have to order a directed verdict in P's favor

25

RIL - Res Ipsa Loquitur

Method to get a case in front of a jury when there isn't a lot of evidence

26

Elements of RIL

1 - thing was in exclusive possession and control of D before accident

2 - the event generally doesn't occur without negligence

3 - P wasn't negligence and didn't have constructive notice