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22 Cards in this Set
- Front
- Back
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What is the definition of negligence? |
failure to exercise the care that a reasonably prudent person would exercise in like circumstances. |
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What is the difference between negligence and strict liability? |
SL: if you do harm, you pay for it NEG: if you do harm, you pay for it IF your conduct was faulty |
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What is a simple mathematical way to summarize negligence? |
Cause in fact + negligence = liability |
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What are the 6 elements of a negligence case? |
1. Establishing negligence 2. Proving cause in fact 3. Determining the proximate cause* 4. Was there a Duty (No duty?) 5. Damages 6. Affirmative defenses |
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What is the negligence standard? |
NEG = Risk > Cost of Avoidance |
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If the risk is lower than the cost of avoidance, thereby making the cost avoidance unreasonable, this is seen to be.... |
Due Care (not negligence) |
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T or F: Risk avoidance calculus only requires the analysis of one aspect, not both (risk and C/AV) |
False, both |
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What is the reasonable person standard? |
Basis for deciding what the average guy would have done |
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The reasonable person always does..... |
Risk Avoidance analysis before acting |
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What are the three steps in a negligence argument? |
1. Identify the "did/should've done"(the candidate) 2. Identify the risks of the did (Facts: why was this likely/not likely to happen) 3. Identify the cost of the should've done ( why is the cost high/low) |
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The candidate chosen as the focal point of a negligence argument must pass the..... |
Cause in fact test |
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When bad conduct is in question, the application of the RP standard always depends on.... |
The facts and circumstances of the case |
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What are 3 substitutions to the reasonable person standard? |
1. Judge made rules 2. Business safety customs 3. Safety statutes |
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T or F: Courts have held that Business customs are equal to the Reasonable Person Standard |
False, meant to be some evidence of RPS but does not prove it entirely |
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Violation of a safety statute is not negligence, but termed.... |
Negligence per se |
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If to be used as evidence, negligence per se has 4 requirements; list all four. |
1. Stat must cover D's conduct 2. Stats purpose is to be a safety regulation 3. Stat purpose is to prevent that "type" of accident 4. Stat purpose is to protect that type of victim |
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T or F: Plaintiff must prove all 4 reqs of negligence per se in order for it to be entered into evidence, but D only has to disprove 1 |
True |
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The key to negligence per se is the proof of the statutes purpose; to argue its purpose, the party needs to focus on 4 factors. This includes..... |
1. Stat language itself (DeHaen case) 2. Legislative history 3. Public record 4. Actual effect/impact |
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What is res ipsa loquitor? |
for "the thing speaks for itself," a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. |
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T or F: Res ipsa loquitor is based on the type of accident |
True |
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To prove or use res ipsa loquitor, the plaintiff must prove.... |
1. Probably of someone's negligence 2. Ds exclusive control of instrumentality 3. No P participation |
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What is concert of action? |
: a theory in torts that imposes liability on all defendants who have committed tortious acts that contributed to the plaintiff's injury even though only one actually caused the injury compare alternative liability at liability |
