Negligence Torts

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Prima Facia Case (Negligence)

Back 1

A Prima Facia Case for an action in Negligence requires the plaintiff to show that the Defendant owed a Duty of Care, that the defendant breached that duty, that that breach was the Actual and the Proximate cause of the Plantiff's harm and that Actual Damages occured.

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Causation

Back 2

Is the causal relationship between the negligent behavior and the actual injury, both Proximate and Cause in Fact must be shown in action.

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Proximate Causation (Legal Cause)

Back 3

A proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury.

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Actual or Cause in Fact

Back 4

The Cause-in-fact is determined by the "but-for" test: but for the action, the result would not have happened.

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Damages

Back 5

Actual damages must be suffered.

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Conduct

Back 6

Negligence occurs when an individual's action's fall below a standard of of conduct imposed by law which protects other's against an unreasonanble risk of injury.

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Risk v Benefit

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If P<L*B = precaution should have been taken. Probability that an event will occur (P)< Degree oif harm caused by event (L) * Burden of the cost of protect (B)

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Duty of Care (General)

Back 8

The duty of care owed is that of a reasonable, ordinary, prudent person of average mental ability and given consideration of physical limitations.

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Duty of Care (Professionals)

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The duty of care owed by professionals is that of professionals in a similar community. Specialists are expected act with superior knowledge.

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Duty of Care (Children)

Back 10

The duty of care owed by children is that of children with similar age, education and experience unless they are engaged in an adult activity, there the standard is that of an adult.

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Duty of Care (Common Carriers/Innkeepers)

Back 11

The duty of care owed by Common Carriers and Innkeepers is a higher degree of duty to their patrons.

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Duty of Care (Emergencies)

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The duty of care owed by a rescuer is that of a reasonable person acting under the same circumstances.

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Duty of Care (Conduct of Others)

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A duty is owed to guard against the negligent conduct of others.

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Duty of Care Land Holder (General)

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Land Holder owes a duty to take precautions regarding Unreasonably Dangerous Conditions

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Duty of Care Land Holder (Unknown Trespasser)

Back 15

No duty other than to act reasonable is owed to an unknown trespasser.

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Duty of Care Land Holder (Known Trespasser)

Back 16

A duty to warn or attempt to warn of dangerous conditions is owed to known trespassers.

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Duty of Care Land Holder (Children)

Back 17

A duty to protect against anticipated children trepassers is owed when an Attractive Nusance is involved.

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Attractive Nusance Doctrine

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Is used to show that child trespassers should have been anticipated and therefore are owed a higher degree of duty.

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Duty of Care Land Holder (Licensee)

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A Licensee enters the land of another with permission and for his own purpose, such as a social guest. The Land Holder owes a duty to the Licensee to act with reasonable care of conduct and to warn of known dangerous conditions.

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Duty of Care Land Holder (Invitee)

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An Invitee enters the land of another by invitation and for business purposes of the Land Holder. The Land Holder owes a duty to the Invitee to act with reasonable care of conduct and to seek out and warn of known and unknown dangerous conditions.

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Duty of Care Statutory (Negligence per se)

Back 21

Negligence per se is the doctrine where an act is considered negligent because it violates a statute. In order to show negligence per se, the plaintiff must show that the defendant violated the statute, that the statute is a safety statute, that the act caused the kind of harm the statute was designed to protect from and that the plaintiff was within the zone of risk. In some jurisdictions, negligence per se creates merely a presumption of negligence.

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Duty of Care Statutory (Duty to Act)

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A duty to act can be created by an assumption of the duty, a creation of peril, by contract, by special realtionship or by law, as with common carriers and innkeepers.

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Breach of Duty (General)

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Plaintiff must show, beyond a preponderance of the evidence, an act, or a failure to act, that violates the applicable standard of care.

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Breach of Duty (B<P*L)

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If P<L*B = precaution should have been taken. Probability that an event will occur (P)< Degree oif harm caused by event (L) * Burden of the cost of protect (B)

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Breach of Duty (Res Ipsa Loquitor)

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If harm does not normally occur sans negligence, and the instrument of harm was in the exclusive control of the defendant a shift to the defendant of proof may occur.

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Defenses (Contributory Negligence)

Back 26

If the plaintiff's own negligence contributes to the cause of injury, recovery is barred unless the Last Chance Doctrine applies.

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Defenses (Last Chance Doctrine)

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Contributory negligence will not bar recovery if Plaintiff had the Last Clear Chance to avoid harm.

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Defenses (Comparative Negligence - Pure)

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The majority position. Damages are apportioned by percent of fault contributing to harm.

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Defenses (Comparative Negligence - Modified)

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Recovery is barred if Plaintiff is either more than 49% or 50% at fault depending on the jurisdiction.

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Defenses (Assumption of the Risk)

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Assumption of the Risk is a subjective standard whereby the plaintiff either expressly or impliedly assumes the known risks of his actions.

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Causation (General)

Back 31

Two types of causation are required, Proximate Causation and Cause in Fact.

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Causation (Cause in Fact)

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Cause in Fact is a question of fact and is present if it is the But For Cause of the harm. With multiple causes, Substantial Factor Test applies and the burden shifts to the defendant between other defendants.

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Causation (Proximate Cause)

Back 33

Proximate cause is a question of law.

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Damages (Actual Injury)

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Plaintiff must prove actual harm, only compensatory damages are available.

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Damages (Duty to Mitigate)

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Plaintiff must take proper care to not aggravate the harm claimed in action.

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Damages (Personal Injury)

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Damages for compensation.

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Damages (Collateral Source Rule)

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An evidentiary rule that prohibits the admission of evidence that a victim's damages were or will be compensated from some source other than the damages awarded against the Defendant.

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Damages (Property)

Back 38

Damages for reasonable cost of repair or Fair Market Value.

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Damages (Punitive)

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Needed

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Defenses (Comparative Negligence - General)

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needed