Torts I - Negligence-Breach Of Duty Of Reasonable Care

Front 1

What is Negligence?

Back 1

Negligence Is Careless Conduct Under The Circumstances

Front 2

Does an employer breach a duty to its employee to provide a reasonably safe place to work and reasonably safe tools for doing the work when the employee injures himself during the scope of his employment and the employee's knowledge of the dangers to be incurred while working is equal to or exceeds the knowledge of the employer.

Back 2

An employer does not breach a duty to its employee to provide a reasonably safe place to work and reasonably safe tools for doing the work when the employee injures himself during the scope of his employment and the employee's knowledge of the dangers to be incurred while working is equal to or exceeds the knowledge of the employer. Stinnett v. Buchele.

Front 3

Failure to take reasonable steps to prevent unreasonable risk of injury from reasonably foreseeable accidents is....

Back 3

Failure to take reasonable steps to prevent unreasonable risk of injury from reasonably foreseeable accidents is negligence. Bernier v. Boston Edison Co

Front 4

Is a foseeable injury to a plaintiff sufficient to hold a shopkeeper liable who attempts to recover property from a shoplifter in so doing causing injury to the plaintiff?

Back 4

When a plaintiff receives an injury because a shop owner attempts to recover property from a shoplifter who is not the plaintiff, one weighs the degree of risk of harm to invitees against the shop owner's privilege to protect his property. By itself, the fact that injury is foreseeable does not show negligence. Giant Food, Inc. v. Mitchell.

Front 5

Does the utility of an act bear on the negligent conduct of an actor?

Back 5

Where a plaintiff received an injury when the noise of a garbage truck startled the plaintiff's horse and his horse threw plaintiff, the owner of the garbage truck is not negligent merely because the garbage truck operator used a truck that produces noise necessary to its regular operation, even though fright of horses may be foreseeable. Garbage collection is a vital public service that is a matter of high social utility Parsons v. Crown Disposal Co.

Front 6

What does the concept B<PL stand for?

Back 6

If the burden of taking adequate precautions (B) is less than the product of the probability of harm (P) and the gravity of the resulting injury (L), liability would attach under appropriate circumstances (B<PL). United States v. Carroll Towing Co. [in a fact pattern where you see alternatives if you can avoid a specific risk that is more expensive that the burden of preventing it then that is what you should do.] Vandetta rule statement: If the burden of alternative(s) e.g. insurance that will reduce/eliminate a specific risk of harm (and was not considered/adopted by Defendant showing cognitive process of perceiving a risk and minimizing it: FORSEEABILITY) is less than the probability that the specific risk of harm will occur, in light of the severity of the loss (person or property quantified by $ as economic value or loss of life then the defendant has breached his duty of exercising reasonable care under the circumstance) Courts often look at the utility of the actions in question to determine the appropriate decisions though they do so without stating so. Courts may modify the rule slightly depending on the (L) e.g. child being taken from the store.

Front 7

What is comparative fault?

Back 7

Comparative Fault. In comparative fault jurisdictions, the degree that plaintiff contributed to his own injuries proportionally reduces the amount of damages that plaintiff may recover in a negligence case

Front 8

What is Joint and Several Liability?

Back 8

Joint and Several Liability. When two or more defendants cause plaintiff's harm, plaintiff may enforce his judgment for money damages entirely against any defendant. However, a plaintiff cannot collect more that his full damages from the defendants.

Front 9

What is Contribution?

Back 9

Contribution. When two or more defendants cause plaintiff's harm and one defendant pays the entire judgment of money damages, that defendant paid more than its fair share of the damages. Contribution permits this defendant to recover a portion of the paid damages from the other defendants. The amount recovered is proportional to the degree of fault attributable to the other defendants.

Front 10

What is several liability?

Back 10

Several Liability. In several liability jurisdictions, the trier of fact apportions the fault among the tortfeasors, and no tortfeasor is liable for more that his proportionate share of damages. Therefore, contribution is unnecessary in these jurisdictions.

Front 11

Does the fact that an accident occur prove negligence?

Back 11

The occurrence, by itself, of an accident does not prove negligence by a fair preponderance of the evidence. Gift v. Palmer

Front 12

Is it the duty of the jury or Court to determine whether a defendant in a negligence case exercised reasonable care under the circumstances? Upchurch v. Rotenberry.

Back 12

It is the duty of the jury to determine whether a defendant in a negligence case exercised reasonable care under the circumstances. Upchurch v. Rotenberry.

Front 13

Who decides the credibility of a witness?

Back 13

The credibility of witnesses is usually a question of fact for the jury. Rarely is the credibility of witnesses a question that a judge decides.

Front 14

What is circumstantial evidence?

Back 14

Circumstantial evidence is evidence of one fact that permits the inference of another fact.

Front 15

What does a jury decide inferences of fact?

Back 15

Inferences of fact are for the jury to decide if there is room for a reasonable person to draw or reject the inferences.

Front 16

Does the court permit a layperson that is a witness to give opinion testimony on the ultimate issues of the case?

Back 16

The court does not permit a layperson that is a witness to give opinion testimony on the ultimate issues of the case that the jury is to decide.

Front 17

The courts allow an expert to present expert opinion or conclusion testimony on the ultimate issues in the case if .....

Back 17

The courts allow an expert to present expert opinion or conclusion testimony on the ultimate issues in the case if the opinion or conclusion is within the field of the expert's expertise and the testimony is likely to help the jury decide an issue in the case.

Front 18

Is the plaintiff required to introduce expert testimony to establish the requisite amount of care when the appropriate care is within the realm of common knowledge and everyday experience?

Back 18

If the appropriate care is within the realm of common knowledge and everyday experience, the plaintiff is not required to introduce expert testimony to establish the requisite amount of care. District of Columbia v. Shannon.

Front 19

What Proof of negligent conduct in a slip and fall case is requiered?

Back 19

Proof of negligent conduct in a slip and fall case requires a finding by the jury that the owner of the premises either created a dangerous condition or had knowledge of the dangerous condition that lead to the fall and resulting injuries. Thoma v. Cracker Barrell Old Country Store.

Front 20

Is evidence of a general custom and usage admissible to establish a standard by which ordinary care may be judged?

Back 20

Evidence of general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes minimum safety requirements that the custom exceeds. Duncan v. Corbetta

Front 21

Are Safety practices themselves the absolute measure of due care?

Back 21

Safety practices are not of themselves the absolute measure of due care. Rather, they are evidence of conduct commonly practiced by individuals who have experience in performing certain tasks. McComish v. DeSoi.

Front 22

If an entire industry follows a custom of usage or the lack thereof and the defendant has followed the custom, will his conduct be excused from liability?

Back 22

Notwithstanding a custom of usage or the lack thereof, there are precautions so imperative that even their universal disregard will not excuse their omission. The T. J. Hooper.

Front 23

Res Ipsa Loquitur (RIL) or the "Thing speaks for itself" is....

Back 23

An Inference or Presumption of Negligent Conduct [vandetta 3 levels of RIL but 1 is the majority view. 1. permissible evidence 2. presumption of negligence and 3. shifts burden of proof to the defendant.] Look for RIL on an exam when there are not specific actions of the defendant that could be argued to breach the duty of care]

Front 24

To invoke the doctrine of res ipsa loquitur, a plaintiff must show that negligence on the part of the defendant is ...

Back 24

To invoke the doctrine of res ipsa loquitur, a plaintiff must show that negligence on the part of the defendant is more probable than not.

Front 25

Absent direct evidence of negligent conduct can the fact that an accident occurred be sufficient of presumption of negligence?

Back 25

Under certain circumstances, the fact that an accident occurred can support an inference or presumption of negligence absent direct evidence of negligent conduct. Byrne v. Boadle.[barrel from a cooper fell on victim rule nisi issued causing winning party at trial court to prove the court’s ruling was a good one]

Front 26

What is the foundation required to invoke the doctrine of res ipsa loquitur?

Back 26

An inference of negligent conduct may be inferred when
• the event that led to injury is of the kind that does not normally occur in the absence of negligent conduct, [air crashes]
• the negligent conduct was a breach of the duty that the defendant owed to the plaintiff, and
• other causes of accident are sufficiently eliminated [normally proven by exclusive control by the defendant]

Front 27

Does the use by the plaintiff of the instrumentality that caused his injury preclude a finding that the defendant had control of the instrumentality?

Back 27

Use by the plaintiff of the instrumentality that caused his injury does not preclude a finding that the defendant had control of the instrumentality. Giles v. City of New Haven. [Lady Injured in Elevator]

Front 28

Does the foundational requirement of exclusive control by the defendant of the instrumentality that caused the plaintiff's harm in itself infer negligence?

Back 28

Some courts find that the foundational requirement of exclusive control by the defendant of the instrumentality that caused the plaintiff's harm in itself does not infer negligence. The issue is whether the defendant's conduct caused the plaintiff's harm. Corcoran v. Banner Super Market, Inc.

Front 29

Is speculation allowed to develop RIL inference of negligence?

Back 29

Pure speculation is not a basis for applying the doctrine of res ipsa loquitur although introduction of specific evidence of negligence does not preclude the use of the doctrine. Plaintive did not rule out all other causes of accident in order to get to RIL. Warren v. Jeffries. [Owner of Car That Rolled Over Six-Year Old Boy]

Front 30

May a plaintiff introduce specific evidence of negligence and still use the doctrine of res ipsa loquitur?

Back 30

Plaintiff's introduction of specific evidence of negligence does not preclude the use of the doctrine of res ipsa loquitur, unless the evidence furnishes a complete explanation of the accident. Widmyer v. Southeast Skyways, Inc. [airplane crash INSTANT FACTS: Airplane encounters a heavy snow squall and crashes killing pilot and passengers.]