Flashcards in Negligence Deck (57)
Define Negligence Per Se
A statute specific duty that replaces the more
general common law duty of due care.
What elements are necessary in Negligence Per Se?
The violation of a statute that:
1. Provides for criminal penalty
2. Clearly defines a standard of conduct
3. Was designed to prevent the type of harm suffered by the plaintiff, and;
4. The plaintiff is within the protected class
What two elements of ordinary negligence does Negligence Per Se establish?
Duty and Breach
Violation of the statute establishes a presumption of duty and breach of duty.
Within Negligence Per Se, does compliance with a statute establish reasonable care per se?
No, but compliance with the statute may be evidence of due care.
Essay Note for Negligence/Negligence Per Se
If a criminal statute is involved, start with negligence per se and work it through. Then go to ordinary negligence.
What is the first element required to prove Negligent Infliction of Emotional Distress (NIED)?
The defendant must have acted negligently.
What is the second element that must be proven, other than that the defendant acted negligently, for NIED?
That the plaintiff was within the target zone or zone of danger.
Within NIED, must the plaintiff suffer some physical manifestation (physical injury) of the emotional distress? Is this the third and final element?
Yes, unlike IIED, in NIED there must be some physical manifestation of the emotional distress.
Are there exceptions to the physical manifestation of emotional injury rule in NIED?
Yes, two exceptions:
1. Defendant erroneously reports a relative's death
2. The mishandling of a relative's corpse
Are there exceptions to the "target zone" requirement in NIED?
Yes, when plaintiff is a bystander and:
1. Plaintiff and the injured person are closely related
2. Plaintiff was at the scene of the injury.
2. Plaintiff perceived or observed the event.
What is the difference between Third Party IIED and Bystander NIED?
In the Third Party IIED, the defendant must KNOW that the plaintiff and victim are closely related AND know that the plaintiff is present at the scene when causing physical harm to the victim.
In other words, the emotional distress inflicted upon the third party in IIED is intentional.
For Bystander NIED, the defendant has acted negligently (not intentionally) and caused harm to another.
The plaintiff has observed or perceived the event causing the harm and is closely related to the victim.
What is Bystander NIED clearly stated?
The defendant has acted negligently (not intentionally) and caused harm to another. The plaintiff has observed or perceived the event causing the harm and is closely related to the victim.
*Think as if the relative saw a family member struck by a car at a bus stop.
What is NIED clearly stated?
A defendant has acted negligently, the plaintiff is within the target zone, and has suffered some physical manifestation of emotional distress as a result.
*Think about almost being struck by car at bus stop, then vomiting constantly upon thinking of it."
When the defendant’s conduct falls short of the required standard of care.
Does injury alone prove breach?
No, injury alone does not prove breach.
What should a discussion around breach consist of?
Whether a defendant did something that a reasonable person would not have done OR did not do something that a reasonable person would have done.
What does Res Ipsa Loquitur mean in Latin?
The thing speaks for itself.
What type of an accident would Res Ipsa Loquitur be applied to?
A type of accident that would not normally occur unless someone was negligent.
What is necessary to prove Res Ipsa Loquitur?
In addition to:
1. Being the type of accident that would not normally occur unless someone was negligent , then also;
2. . The instrumentality causing the injury was under the sole control of the defendant;
2. The plaintiff did not contribute to his own injury.
What two elements of negligence would Res Ipsa Loquitur satisfy if proven?
Duty and Breach
What is the difference between Negligence Per Se and Res Ipsa Loquitur.
In Negligence Per Se, duty and breach are proven by the violation of a criminal statute and someone that statute was made to protect was harmed as a result (running red light and hitting car).
In Res Ipsa Loquitur, the type of accident is such that would not normally occur unless someone had breached a duty (barrel falling from a window), but no one saw it or can prove what happened.
What are the two types of causation in negligence?
Actual and Proximate
What is actual cause?
"But for" cause
What is proximate cause?
Foreseeability. Was the harm foreseeable?
What are the two types of proximate cause?
Direct and Indirect
What is direct proximate cause?
When there is no intervening act by a third-party (or act of God) between the defendant's act and the plaintiff's injury.
For example: While negligent, I drove my car directly into plaintiff, causing his injuries.
Are all direct causes automatically proximate causes?
Yes, all direct causes are proximate causes. When there is a direct cause, proximate cause is proven.
What is an indirect proximate cause?
When there IS an intervening act by a third-party (or act of God) between the defendant's act and the plaintiff's injury.
To be liable under indirect proximate cause, does the intervening harm to the plaintiff (caused by a third-party or God) have to be foreseeable?
Yes, under indirect proximate cause, the intervening act must be FORESEEABLE for the defendant to be liable.