Negligence - Breach, Causation Flashcards
(35 cards)
What is a Breach of Duty?
Where ▵’s conduct fails to conform to the applic. std. of care
- Failure to act as a reasonable person
- An unexcused violation of statute
- Res Ipsa Loquitur (where no direct evidence)
What is the traditional approach indetermining if a breach of duty occured?
By comparing the D’s conduct with what a reas. prudent pers. under the circ. would or would not have done (Objective std.)
What is the modern trend in determining if there was a breach of the duty of care?
Cost-Benefit Analysis - the following factors are considered in determining if the D has acted in accordance with the std. of care:
- The foreseeable likelihood that the D’s conduct would cause harm
- The foreseeable severity of any resulting harm AND
- The D’s burden (costs or other disadvantages) in avoiding the harm
What burden must a plaintiff satisfy in proving breach of duty?
Plaintiff must prove every element by the preponderance of the evidence
What is the preponderance of the evidence standard?
More likely than not
- Greater than 50%
What 2 types of evidence can show a breach of duty?
- Direct Evidence - eyewitness or videotape of the accident
- Circumstantial Evidence - Ev. from which one can draw a reas. infeence
Define Res Ipsa Loquitur
The thing speaks for itself
When is res ipsa loquitor applicable ?
Arises when Plaintiff can’t identify exactly what the D did that was wrong (no direct evidence)
- BUT the event could only occur through the Defendant’s negligence
What are the Elements of Res Ipsa Loquitur?
Applies only where a lay jury could say that the accident would not ordinarily occur in the absence of the ▵’s negligence
- No Direct Evidence as to the ▵’s precise conduct
- Accident Normally Does Not Occur w/out Negligence by Someone in ▵’s position AND
- Instrument that inflicted the injury was w/in ▵’s Exclusive Control
▵ must be the most likely pers. whose. neg. would have caused the accident
What is the result of the Doctrine of Res Ipsa Loquitour ?
∏ is treated as having produced enough ev. of the ▵’s neg. to get the case to the jury (no directed verdict for ▵)
- ▵ can rebut this evidence
- Jury is free to reject the res ipsa loquitur inference
What is cause in Fact ?
Link b/w defendant’s breach of duty of care and plaintiff’s injury
What is the default test to prove the element of cause in fact?
But For Test
- But for the brach of duty by the D, the P wouldn’t have been injured
What are the 3 areas where cause in fact is not evaluated through the but for test?
- Multiple Causes
- Loss of Chance
- Alternative Causes
When there are multiple causes contributing to a Plaintiff’s injury, what test is used to prove the element of cause in fact?
Substantial Factor Test - D liable if their negligence was a subst. factor in the plaintiff’s injury
- Where 2 concurrent causes,
- each of which could have been sufficient by itself to cause the injury to ∏
- So long as one of the causes was subst. factor in bringing about ∏’s injury, it is the cause in fact
Substantial Factor Test - What if both causes are found to be substantial factors?
Both Causes found to be Substantial Factors = ▵s will be jointly liable
Cause in Fact - Concert of Action
All Defendants will be jointly & severly liabile if:
- If 2 or more tortfeasors were acting pursuant to a common plan or design AND
- The acts of one or more of them tortiously caused the P’s harm
When does loss of chance apply?
It must be integrated specifically by statute
- Usually applies in med. malpractice cases
- When P can’t meet preponderance of the ev. std. for causation (more likely than not)
- b/c chance of recovery was already less then 50% b/f D’s negligent conduct
When loss of chance applies, what are a plaintiff’s damages?
P can recover reduced damages
- Measured by:
- an amount equal to the total damages recoverable as a result of the death
- multiplied by the difference in the percentage chance of recovery b/f neg. misdiagnosis & after the misdiagnosis
The loss of X% chance of survival if not but for defendant’s negligence
When does the alternative liability theory apply to prove cause in fact?
Where there are multiple causes but neither are sufficient by tiself to cause P’s injury
- Both causes are considered CIF
What is the effect if alternative liability theory applies to prove cause in fact against the defendants at issue?
Burden shifts to the defendant to show that they were not the cause
- If D can’t do so, then they will e jointly & severally liable
What does proximate cause ask?
Is there a reason to limit the extent of liability due to?
- Was harm to plaintiff foreseeable? OR
- Was it brought about by some extraordinary or unforeseeable sequence of events ?
Proximate Cause - What is the Majority Rule ?
D is liable for reasonably fores. consequences resulting from his conduct
- Type of harm must be foreseeable
- Extent of harm doesn’t need to be foreseeable
Proximate Cause - Minority Rule
Prox. cause is found for all consequences that flow directly from the defendant’s conduct
- Considers:
- Number of intervening causes AND
- Remoteness of the cause from the effect
Other courts find prox. cause if Ds conduct was direct cause of P’s injury regardless of foreseeability
What is Defendant’s liability if the manner of the harm was unforeseeable?
If there was a superseding cause, then there is no liability for the defendant
