Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/41

Click to flip

41 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
Negligence
conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm
What are the elements of a cause of action for Negligence?
Duty
Breach of Duty
Causation
Damages
What is a duty?
a legal obligation recognized by law requiring an actor to conform to a standard of conduct for protection of others against unreasonable risk of harm
How is a duty established?
forseeability of harm - existence in situation of some real likelihood damage and likelihood of such weight to reasonably induce action to avoid it of person of reasonably prudent mind

B < PL
(Burden < Probability x Injury)
likelihood and an equation
What is the standard of care?
reasonable man of ordinary prudence under like circumstances
What kind of man?
What are exceptions to the reasonable man standard?
- a child held to reasonable person of like age, intelligence, and experience under like circumstances (unless engaged in adult activity)
- actor w/ superior knowledge is held to a reasonable person with superior knowledge under like circumstances
- disabled person held to reasonable in light of infirmity, but must take precautions that ordinary reasonable man would take if he were disabled
May an actor be liable for negligence in an emergency situation?
If the event is unforeseen, sudden, and unexpected - NO

if the event is caused by the actor - YES
What is the standard of care for professionals?
actor must exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities
When is expert testimony necessary to prove a standard of care?
- if the negligence is not apparent for a laymen to recognize
- to show treatment deviated from the method approved by the medical community
Negligence Per Se
violation of a statute

negligence by itself; a duty established by the legislature that if breached and causes injury results in liability for negligence
Exceptions for Negligence Per Se
- where compliance would cause more danger than violation
- where compliance is beyond actor's control
Breach of Duty

(Proof)
must show what in fact happened

must be shown from these facts that defendant acted unreasonably
What do you have to "show"?
How is the breach of duty established?
- custom or usage
- violation of statute
- res ipsa loquitur
Res Ipsa Loquitur
"the thing speaks for itself"

the mere fact of the events raises the inference of negligence
This might "mere"ly "raise" something
What are the required preconditions of Res Ipsa Loquitur?
- under exclusive control of the defendant or defendant servants
- not happen in ordinary time with reasonable care
Is there a conclusive presumption of duty and breach in negligence per se?
Yes and no.
Majority - irrebuttable presumption of negligence that cannot be overcome
Minority - rebuttable presumption overcome by intro of contrary evidence
Can you "rebut" this?
What if there are multiple defendants involved in Res Ipsa Loquitur?
Res Ipsa Loquitur may generally not be used to establish negligence

(but see: defendants must establish his negligence did not cause the injury)
Sine Qua Non
"without which not"

indispensable and essential action, condition, or ingredient

Causation in Fact
How is actual cause established?
- "but for" test

- substantial factor test
What are the tests?
"but for" test
when the injury would not have occurred BUT FOR the act

(when several acts combine but none alone would be sufficient to cause injury)
substantial factor test
if defendant's conduct was a material element and substantial factor in bringing about the injury

(where several causes concur and any one alone would be sufficient to cause injury)
Proximate Cause
standard placed by courts for limiting liability for consequences of act so the defendant is not held liable for highly extraordinary consequences of conduct
What tests determine whether the act is the proximate cause of harm?
Foreseeability (Cardozo - Danger Zone)

Hindsight (Andrews - anyone reasonably foreseeable)
a disagreement over the theme from "Top Gun"
eggshell skull rule
a defendant is liable for aggravation of an existing injury, regardless if the magnitude of the injury is foreseeable (take the plaintiff as he finds him)
Intervening Superseding Cause
cuts off liability

To determine:
- unforeseeable in normal course of events OR
- extraordinary OR
- independent of or far removed and not stimulated by the conduct of the actor
How is it determined?
Is suicide an intervening superseding cause?

What about a criminal act?
No

Sometimes
What is the Rescue Doctrine?
a defendant is liable for any harm to person resulting from that person giving aid or protection to imperiled person, as long as harm results from risk in giving aid
What are compensatory damages?
- restore the victim to status before the injury
- award the closest possile financial equivalent of loss or harm
What are punitive damages?
awarded to punish, make an example of, or deter the defendant
What are nominal damages?
a small sum to vindicate rights, carry part of the costs of action, or prevent the defendant from acquiring rights

(damages "in name only")
What damages are available for personal injuries?
special damages (economic)

general damages (non-economic)
What is the maximum recovery rule?
when a jury exceeds the maximum amount a jury could reasonably find, a judge may reduce the award to the highest amount properly found
What kind of damages must a plaintiff show in a cause of action for negligence?
Actual damages must be shown to recover for negligence.
What is an action for Wrongful Death?
Statutory law allowing certain beneficiaries to recover pecuniary damages for the death of a victim.

(this action is for the beneficiaries' damages)
beneficiaries
Distinguish a Survival Action and an Action for Wrongful Death.
Survival Action - cause of action for decedent's estate for injuries or damages prior to death

Wrongful Death - beneficiaries of the decedent to bring an action for loss and consortium due to death from defendant's tortious conduct
What is Contributory Negligence?
Conduct that falls below the standard of care established by law for the protection of others from unreasonable risk of harm by the PLAINTIFF
What purpose does Contributory Negligence serve?
An affirmative defense for the defendant that requires proof of the 4 elements of an action for negligence.
What is the doctrine of last clear chance?
If the defendant has the opportunity to avoid the accident after the opportunity is not longer available to the plaintiff, the defendant is liable

TRUMPS contributory negligence defense
Define Cause
the process by which A brings about B
Define Foreseeability of Harm
existence in situation of some real likelihood of damage and likelihood of such weight to reasonably induce action to avoid it of person of reasonably prudent mind
Likelihood and the likelihood is heavy
What is a Survival Action?
lawsuit brought on behalf of decedent's estate for damages or injuries incurred by the decedent immediately prior to death

(this action is for decedent's damages, had he lived)