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23 Cards in this Set
- Front
- Back
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What are the elements of negligence?
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1. duty
breach causation harm |
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How do we defined duty? standard?
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The reasonable standard of care owed a member of a society w/tirt law. Its an objective standard.
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What are the exceptions to the objective duty standard?
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1. Emergecy Jury Instructions
Here, we alw the jury to consider the duty owedsubjectively due to the natur eof the siuation. it must a. be caused by D b. be sudden, c. have left no time for reflection 2. superirio knowledge or ability Here, weher you're bette at something, you owe a higher duty, but if you;re a rook, i's not lower 3. Children They are held to the standrd of their age and ability, except when doing dangerous activites or adult activities, or both. 4. Mental disability Here it's not lowered, but it can be factored in. 5. physical abilities--you can;t do something reckless and pople must accomodate you. it can;t cut both ways. this does NOT excuse drunkeness, but being drunk isn;t conclusive. |
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What are the 5 ways we consider breach?
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1. ad hoc
2. neg per se 3. learned hand 4. res ipsa 5. custom |
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How do we define the ad hoc breach?
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objective standrd--relies on feasibility and foreseability.
feasibility speaks tt he ease of not being negligent vs being negligent. foreseeabiity speaks to the likelihood of occurence (double F's) |
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What are the elements of neg per se?
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1. criminal and not civil
2. defines the sandrd of care owed 3. protects the right people 4. causes the harm designed to prevent 5. is the cause of the harm |
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What are excuses for neg per se?
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1. statutiry excuses
2. good faith effort 3. comliance led to furthr trouble 4. worded awkwardly 5. emergency rising form osmeone else's conduct |
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Things to consider re: neg per se...
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narrow v. broad
majority concuisve of duty and breach, but minority go towards duty and must still establish breach for chiuldren, it just goes into the jopper-not concluive! |
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What is the Learned Hand test? what does it fatcor in?
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B<LxP=L
If the burden is les than the loss andthe probability of occurence, you're liable. the inverse is also true. The burden is costs, value to society, alternatives, iconvenience, etc. |
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If a beac exists, but it industry custom to ben eg in that way, is it excused?
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It depends..we don;t rely n the notion that "if they d it, so will I", however we want people to be ale to depend on the stbblity of the law and expectation..its imprtant
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When considering custom as a way to establish breach, how do we phrase it?
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This is what we do vs. this is why we do it...that will test its strength
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How do we define RIL elementally?
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It exists where:
1. there has to have been a neglihent act, but you dont know what it was. 2. D had exclusive control over th situation (narrow) or, the P and everyone else were NOT in control o te situation 3. a duty existed |
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Once the presumption of guilt exists in a RIL ase, what are the 2 ooutcomes?
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1. D can fight it or
2. The judge can direct a verdict |
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What are som good ?'s to ask when consiering RIL?
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is this ONLY negligence? whose fault was i? anyone else?
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What are excuses for RIL?
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weather, and ?????????
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What are the four ways we consider CIF?
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1. But for test
2. substantial factor test 3. w/multiple t.f. and unlear EXCTLY who, put em all in the hopper 4. lost chance test |
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What are the elements of the but fo test? exceptions?
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this would not have happened but for your negligence
EXCEPTIONS 1. responeat superior 2. co-conspirators 3. partners |
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Under CIF, where injuries and t.f.'s are indivisible, how do we assign liability?
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jointly and severally
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What EXACTLY is the substantial factor test?
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his i what we do when "but for" wont lead to justice cuz harm was ineveitable, but D WAS neg. Here were your act INCREASED the chances of it happening and it DID happen, liability! D MUST show that though they were neg, thy weren;t the cause! duplicative causes v preempted
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What is the lost chance test?
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Here, a P misses out on an opportunity due to some neg act o P...i.e.-ineleigible for full recivery where you sewed me up negligently
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How do we define lgal cause elementally?
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The Risk Rule looks at the foreseeability of:
1. D's neg act increasing the specific harm 2. the specific harm ocurs we look in narrow vs. broad term |
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If it is not a dirct cause case of LC, what do we look for and what i their potential affect?
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We look f rintervening factos to determine if they can supersede?
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When xamining intervening factors, what do we conside?
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how did it happn? what happened? thin skull? Nature? Criminal? Termination of Risk? Recklessness? It could have hapened anyay Rescue Doctrine? Plaintiff Susceptibility
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