Negligence

Front 1

Duty

Back 1

To refrain from those acts that a reasonable person should foresee as posing an unreasonable risk of harm to a particular interest of a particular person

Front 2

elements of duty

Back 2

1. What is a reasonable person?

2. Foreseeablity

a. Hand test

b. per se

c. Res Ipsa Loquitur

Front 3

Hand test

Back 3

1. probability of the accident P

2. gravity of the harm to be suffered L

3. Burden of adequate precaution B

burden of knowing to refrain b1

burden of actually refraining b2

b1 + b2 >= P * L

Front 4

statute - per se

Back 4

1. Isthe plaintiff included in a class of people that the legislation intended to protect? 2. Isthe injury the kind of injury that the legislation intended to prevent?

3. Isthe statute an appropriate measure of civil liability?

Front 5

legislative intent (per se)

Back 5

a. Is there a purpose section?
b. Historical context that led to passage ofstatute or regulation.
c. Plain meaning of the violated section d. Surrounding sections (Are they consistent or do they intend somethingelse?
e. Are there gaps?ie. what did they not say?
f. Title of the law
g. Policy
h. Common understanding of the world Legislative history

Front 6

Appropriate means of civil liability? (per se)

Back 6

1. In a typical case would the court be ableto trace the causal chain from the plaintiff’s injury to the violation of thestatute?(should not look like causation. If it does it is wrong)
2. Is the imposition of civil liability or tortliability consistent with the degree of moral culpability that the legislatureassociated with the violation of the statute? (thepunishment associated with violation is an indication)

Front 7

cause

Back 7

any and all consequences, no matter how novel or extraordinary

(direct cause)

Front 8

direct cause (elements)

Back 8

1. "but for" certain or uncertain; And

2. Material or substantial

Front 9

"but for"

Back 9

Certain "but for" OR

uncertain "but for"

1. the breach is of a character naturally leading to the occurrence of the injury; AND

2. breach greatly multiplies the chance/probability of injury

Front 10

material or substantial (multiple causes)

Back 10

1. Was it the sole cause? if not

2. Would defendant's breach, by itself, have caused the plaintiff's injury? if not

3. Was defendant's breach the greater cause?

if not

4. question for the jury

Front 11

reasoning test

Back 11

1. Value (policy benefit)

2. link (how does ruling that way further the value?)

3. explanation. if you adopt the rule, then the value would occur;

because they are motivated by .... and

because they can make the change

Front 12

res Ipsa Loquiter

Back 12

1. Must not be due to the plaintiff’s voluntaryaction
2. The condition for the accident does notordinarily occur outside of negligence
3. Plaintiff’s injury must have been caused by aninstrumentality under the defendants’ control

Front 13

vicarious liability

Back 13

Respondeat Superior

defendant and liable 3rd party shared the necessary relationship

control

enterprise theory - for the benefit

injury occurred within the scope of that relationship

Front 14

breach

Back 14

there was a duty to do something and the defendant do not do

OR

there was a duty to refrain from doing something and the defendant did it.

aka. there was a duty that was shirked by defendant

Front 15

Injury

Back 15

physical injury to

person

real property

personal property

Front 16

contributory negligence

Back 16

absolute bar to recovery, unless:

def conduct was intentional

def had the last chance to exercise

reasonable care

plain negligence is remote

Front 17

comparative negligence

Back 17

allows reduced recovery. details to be provided