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14 Cards in this Set

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Res ipsa loquitor
The thing speaks for itself

It is a rule of evidence that permits but does not compel an inference of negligence under certain circumstances
Res ipse loquitor applies only in rare cases
Res ipsa loquitor – 3 prong test
1. there was an accident
2. that the instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant
3. that the accident wais such that in the ordinary course of events the defendant using ordinary care, that the accident would not have happen
Res ipsa loquitor Doctrine
Merely a rule of evidence under it an inference may arise in aid of the proof
Ex: It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting provided certain elements consistent with negligent behavior are present.
McDougall v. Perry
When the facts of an accident in and of themselves establish that but for the failure of reasonable care by the person or entity in control of the injury producing object or instrumentality the accident would not have occurred
Larson v. St Francis Hotel
The doctrine of res ipsa loquitor applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant and can have no application
To a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes for some of which the defendant is not responsible, and when it appears that the injury was caused by one of two causes for one of which defendant is responsible but not for the other plaintiff must fail, if the evidence does not show that the injury was the result of the former cause, or leave it as probable that it was caused by one or the other
§282 Negligence
Negligence is conduct which falls below the standard establish by law for the protection of others against unreasonable risk harm
§283 Conduct of a Reasonable man: The standard
Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances
§284 Negligent Conduct; Act or Failure to act
Negligent conduct may be either:
(a) an act which the actor as a reasonable man Should recognized as involving an unreasonable risk of causing an invasion of an interest of another, or
(b) a failure to do an act which is necessary for the protection or assistant of another and which the actor is under a duty to do.
§289 Recognizing Existence of Risk
The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising
§291 Unreasonableness; How Determined; magnitude of Risk and Utility of conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another the risk is unreasonable and the act is negligent if the risk is of such magnitude as to out weight what the law regards as the utility of the act or of the particular manner in which it is done
§ 292 factors Considered in Determining Utility of actor ‘s conduct
In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct
(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct
Negligence Per se
violation of a statute

The essence of the present inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the statute.
The concept of Legal cause
Proximate cause / legal cause / scope of the risk / scope of duty (all the same)
Should this defendant be responsible in this case?
Dixie Drive it yourself New Orleans Co. v. American Beverage Co.
Negligent conduct is a cause-infract of harm to another if it was a substantial factor in bringing about that harm. Under the circumstances of these case, the negligent conduct is undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. A cause-in –fact is a necessary antecedent. If the Collision would have occurred irrespective of the negligence of the driver of the RC Cola truck, then his negligence was not a substantial factor or cause in fact

We can reasonable infer that the collision would not have occurred if the statutory precautions to protect approaching traffic had been taken. The mere possibility that the accident would have not occurred despite the required precautions does not break the chain of causation

Since the law never gives absolute protection to any interest, recovery will be allowed only if the rule of law on which plaintiff relics includes within its limits protection against the particular risk that plaintiff’s interests encountered. This determination of the particular risks to plaintiff that fall within the ambit of protection of the rule of law on which plaintiff relies is the determination of the issue of proximate cause.

Whether the risk produced by the combination of defendant’s act and the intervening cause is one which is within the scope of protection of the rule of law upon which plaintiff relies.

To deny recovery because of the plaintiff’s exposure to the risk from which it was the purpose of the law to protect him would nullity the statutory duty and render its protection meaningless