Negligence Flashcards
(57 cards)
What is negligence?
Conduct that falls bellow the standard of care that a reasonably prudent person would have exercised under like circumstances, and thus, places unreasonable risk upon another
What are the elements of negligence?
- Duty
- Breach
- Causation
- Damages
What is the element of duty?
The legal duty to use reasonable standard of care (to avoid unreasonable risk to others)
Does one have the duty to take affirmative action?
NO - except in recognized special relationships
But, if a doc is not within work hrs. then does not have to take affirmative action to help
What is breach?
Failure to meet the standard of care. Breach is the heart of negligence.
What does P need to show that D breached duty?
P needs evidence that D either:
(a) Created dangerous condition OR
(b) Noticed dangerous condition and didn’t remedy it
- actual notice: seeing something and not doing
- constructive notice: presumed noticed based on existing facts/circumstances
What is causation?
A reasonably close causal relationship between conduct and injury
What are the two elements of causation?
- Causation in fact (actual cause): a “but for” cause - injury wouldn’t have occurred w/out it
- Proximate cause: “sufficiently close” causal connection b/t D’s negligence and P’s harm
What are the damages for negligence?
Actual damages
What must P generally show concerning D’s conduct?
That D’s conduct imposed “unreasonable risk of harm”
What is the balancing test for “unreasonable risk”?
Risk is unreasonable and act is negligent if the risk OUTWEIGHS what the law regards at the utility of the act
What kind of role do warnings have in negligence?
Risk of conduct can be reduced by warnings, but failure to warn can itself be negligent
Who is the reasonable person?
Not an extraordinary careful person who uses ordinary prudence
Standard of care if physically disabled?
Held to same standard of person with that specific disability
Standard of care if intoxicated?
Held to same standard of a reasonably sober person
Standard of care if child?
Held to same standard of child of same age and experience, BUT if engaged in dangerous adult activity, THEN held to same standard of care of an adult
Standard of care during emergency?
Held to same standard of someone who faced same emergency
What are the elements of an emergency?
- Unforeseen
- Sudden
- Unexpected
Do parents have duty to exercise reasonable care to supervise conduct of their children?
YES - parents are directly liable for any unreasonable risk or harm caused by their children
What is malpractice?
Negligence by professional–where act falls below the standard of care that an ordinary reasonable profession would have exercised under like circumstances
What is Negligence Per Se?
Under NPS doctrine, when D’s negligent conduct violates a statute, this conclusively establishes negligence
When does Negligence Per Se apply?
- Injured P must be a member of the class that statute was made to protect
- P’s injury is an injury that statute meant to protect against
What is the majority and minority ruling of NPS?
Majority - NPS is NPS (jury must find that there was duty and breach of statute)
Minority - violation is only evidence of negligence, which jury may accept or reject
What is Res Ipsa Loquitur?
“The thing speaks for itself”
Under doctrine, the very fact that accident happened leads to the inference that negligence caused it
