Torts Negligence

Front 1

Negligence/prima facie case
Elements

Back 1

1. duty of reasonable care
2. breach of duty
3. causation
4. injury

Front 2

"D was negligent" means

Back 2

breach of the standard of care
-careless
-failed to excercise reasonable care

Front 3

definition of negligence "breach"

Back 3

omission of doing something a reasonable person would do or acting in a way a reasonable person should

Front 4

qualities of a reasonable person

Back 4

-considers foreseeable risk of injury upon public
-considers risks in the light of the utility of the conduct
-considers extent of risk
-considers likelihood of a risk
-alternatives pose lesser or greater risks
-considers cost

Front 5

Hand Formula for Duty (element definition)

Back 5

P=probability
L=loss/injury
B=burden

Front 6

Hand Formula liability (best with economic situation)

Back 6

B<PxL--duty
B=PxL---no duty
B>PxL--no duty

Front 7

Reasonable person under circumstances
(physical disability)

Back 7

required to act a reasonable person with that disability

Front 8

Reasonable person under circumstances
(dumb or mentally disable)

Back 8

Required to act a reasonable person
-held to the same standard as everyone else

Front 9

Reasonable person under circumstances (Child)

Back 9

not held to adult standards of care
-reasonable person of like age, intelligence, and experience

Front 10

reasonable person under the circumstances (child) exceptions

Back 10

child engaging in an adult activity
-driving

Front 11

Circumstances: Emergency

Back 11

judging the reasonableness of conduct in an emergency situation

Front 12

Circumstances: Statute

Back 12

reasonable person obeys the law
-if D ignored he was negligent

*must prove negligence based on violation of statute

Front 13

Circumstances: Professional

Back 13

professional assumes the role of expert
-expected to employ the skills and knowledge of profession
-NOT held to ordinary person

Front 14

Circumstances: facility or resources

Back 14

Reasonable in certain situations
Ex. doctors office does exploratory surgery because no MRI

Front 15

Statutory standards:Negligence Per Se-early cases

Back 15

If Violation of the statute the jury is required to find her negligent with no excuse

Front 16

Defense against Negligence Per Se

Back 16

Can only prove statute does not apply OR did not cause P's injury, CANNOT use excuse

Front 17

Statutory standards: Negligence Per se-common formula

Back 17

unexcused violation of a relevant statute is neg per se
-D may offer evidence of an excuse
-sufficient reason

Front 18

Negligence Per Se excuses

Back 18

-incapacity
-lack of knowledge of need to comply
-inablity to comply
-emergency
-compliance poses greater risk that violation

Front 19

Negligence per se is what element in a prima facie case?

Back 19

breach

Front 20

Presumption of negligence

Back 20

proof of statutory violation creates a presumption the violator was negligent
-can try to prove reasonable person would have acted the same

Front 21

Presumption and Neg Pe se
have in common

Back 21

D can offer an excuse
if D does not the violation established negligence
burder of proof on P

*burden shifts after violation shown
*if D offers excuse, P burden to convince jury conduct not reasonable

Front 22

Evidence of Neg

Back 22

treat violation of statute as evidence of neg
-evidence that the defendant violated a statute is admissible at trial
-may be persuaded on evidence alone or along with other evidence that the D was neg

Front 23

Evidence of Neg, difference from Per Se and presumption

Back 23

even in the absence of rebutting evidence from the defendant jury is not compelled to find D neg

Front 24

Relevant statute

Back 24

only relevant in establishing negligence if it is meant to protect persons like the P from that type of harm which actually occured

Front 25

Res Ipsa Loquitur
-relevant case Byrne V. Handle

Back 25

the thing speaks for itsself

Front 26

Res Ipsa Loquitur
- special form of circumstantial evidence

Back 26

jury can reasonably infer negligence from the facts given
-more probable than not D was negligent

Front 27

Res Ipsa Loquitur
-special form of circumstantial evidence cont.

Back 27

there is no showing of exactly how the accident happened but the fact the it happened at all suggests that someone was negligent

Front 28

P conduct on Res ipsa Loquitur

Back 28

P not barred if contribulatory neg -must show neg that created initial danger is attributable to the D rather than P

Front 29

Cause in fact

Back 29

the D act contributed to producing the P injury

Front 30

cause in fact: But for test

Back 30

the D conduct is a cause of the event if the event would not have occurred but for that conduct

Front 31

sine qua non

Back 31

without which it is not ; an indispensable requisite
-the injury would not have happened without D act

Front 32

Cause in Fact: But for test (2 causes)

Back 32

no defense for one negligent actor that someone else's negligence also contributed to the accident
-doesnt have to be sole

Front 33

Cause in Fact: Substantial Factor

Back 33

a material or substantial element
-2 fires merge into one and burned P property(multiple sufficient causes)

Front 34

2 things jury decides in Substantial factor test

Back 34

1. what degree of causation is substantial
2. whether the d neg reaches that level

Front 35

Summer V. Tice cause in fact rule

Back 35

When both Ds had committed the same neg act and one or the other injured the P
-court shifted the burden of proof to D to show not cause of harm
-if can't then both liable
-

Front 36

Cause in fact: market share liability

Back 36

P can sue a # of manufactures , assuming are found at fault, hold each liable for part of the P damages
-shared liabilty is determined on proportion share of fault

Front 37

cause in fact: Loss of chance

Back 37

held liable for proportion that chance is produced
(check book)