Negligence

Front 1

Prima Facie Case For Negligence

Back 1

- there is one standard of care for negligence actions, the standard of reasonable care under the circumstances, which requires a person to exercise care in proportion to the danger of his activity
•Act as reasonable person under the circumstances

Front 2

Elements of Negligence

Back 2

1. Duty
-what standard of care are we required to follow
-set by the judge and he instructs jury
2. Breach
Duty & Breach = negligence per se
3.Actual Harm – legally cognizable harm
4.Causation
-Proximate cause
-Cause in fact

Front 3

Who has the burden of proving the elements

Back 3

The Plaintiff

Front 4

What is duty?

** 1st Element **

Back 4

The standard of care we are required to follow

Front 5

What is negligence?

Back 5

Failure to exercise the amount of care that a reasonably prudent person would exercise under the circumstances
•Negligence is a careless conduct under the circumstances

Front 6

What is care?

Back 6

attention, caution, and prudence to perceive and avoid harm to oneself and others

Front 7

What is the normal standard of care to be followed?

Back 7

Reasonable person under the circumstances - which requires a person to exercise care in proportion to the danger of his activity

Front 8

Restatement 2nd - what kind of care

Back 8

- care is always reasonable care, the amount varies

Front 9

Who sets the standard of what is reasonable care under the circumstances?

Back 9

Judge sets
Jury determines the standard

Front 10

What is reasonable care?

Back 10

•reasonable care = as a test of liability for negligence, the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances

Front 11

What are exceptions to duty?

Back 11

- physically impairments
- insane people
- Child
- operating motor vehicles
- Negligence per se

Front 12

Physical impairments

Back 12

•Restatement 3rd §11 a – the conduct of an actor with physical disability is only negligent if it does not conform to that of a reasonably careful person with the same disability

Front 13

Insane people

Back 13

the law generally holds insane people to the standard of a reasonable person

Front 14

Restatement 2nd - for insane people

Back 14

•in general, the standard of care for adults with mental disabilities is the same standard of reasonable care that governs adults without mental disabilities, with no allowance for their capacity to control or understand the consequences of their actions
•The standard of the reasonable man requirement only a minimum of attention, perception, memory, knowledge, intelligence & judgment in order to recognize the existence of the risk
•If the actor has a minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances

Front 15

Common law - insane people

Back 15

•common law rule that holds adults with disabilities to the same duty of care that the law requires of those without mental disabilities

Front 16

Child

Back 16

When a child engages in an inherently dangerous activity, or an activity which is normally one for adults only, courts will hold the child to an adult standard of care
a.Show adult skills required for activity
b.Is action done usually one done by adults

Front 17

Restatement 2nd - for Child

Back 17

is that of a reasonable person of like age, intelligence, and experience under like circumstances

Front 18

Standard Law - Child

Back 18

•Standard law= reasonable child under same circumstances
•Rule of 7
•Up to 7: incapable of negligence
•7-14: presumed incapable, can be proven capable
•14+: presumed capable

Front 19

Restatement 3rd - Child

Back 19

children under 5 incapable of negligence

Front 20

Standard of care for operator of motor vehicle

Back 20

Ordinary Care

Front 21

Operator Motor Vehicle - Common rule of law

Back 21

-General rule of law, even in the absence of statutory requirement, that the operator of the motor vehicle must exercise ordinary care, that degree of care which an ordinarily prudent person would exercise under similar & in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep a reasonably careful look out & keep same under such control at night & be able to stop within the range of his rights
•Stop within the range of your rights

Front 22

What is drivers ultimate duty that the court adopts?

Back 22

•a driver’s ultimate duty is to excise reasonable care under the circumstances, which may not always include a duty to be able to stop his vehicle within the range of its right
•every vehicle should have lights attached, be visible from front and rear

Front 23

Contributory Negligence

Back 23

the now largely abolished doctrine that if a person’s negligence was a partial cause of the injury, it bars his recovery of damages from another whose negligence also was a partial cause of his injury, regardless of the relative fault of the parties

Front 24

Negligence as a matter of law

Back 24

a judge’s determination of negligence based on evidence of conduct that is so clearly below the level of care a reasonable person would exercise that a jury could not reasonably find otherwise

Front 25

Negligence Per Se

Back 25

you have breached that standard of care, negligence established as a matter of law, so that breach of the duty is not a jury question.

Front 26

Is a violation of a statute negligence per se?

Back 26

YES

Front 27

How to replace a common law duty of care with a duty of care from a statute or regulation

Back 27

1.clearly define standard
2.type of harm
3.member protected
4.proximate cause -> then goes to reasonable person standard to determine

Front 28

What are the excuses to negligence per se?

Back 28

oExcusable situations = if you are excused from violating a statute = you are deemed NOT Negligent
- Excuse
-Justification

Front 29

What is an excuse?

What is a Justification?

Back 29

•Excuse= a reason from exemption from a duty of care

•Justification = a legally sufficient reason for conduct that frees a person from liability where his conduct would otherwise be tortuous

Front 30

What are excuses?

Back 30

1.incapacity = a lack of physical or mental abilities that makes a person unable to exercise ordinary care
2.reasonable lack of knowledge of the need for compliance
3.inability after reasonable diligence to comply
4.an emergency not due to the person’s own misconduct
5.a greater risk of harm from compliance

Front 31

What is breach of duty?

** 2nd Element **

Back 31

•defendant who breaches duty of care is negligent

Front 32

Elements of Breach of duty

Back 32

1. Forseeability
2. Alternative conduct
3. Seriousnesses of harm
4. Who is the best safety provider

Front 33

Elements of Breach of duty (expanded)

Back 33

-intuition
-hard and fast rule
-negligence per se
-forseeablility
-risks
-alternative conduct
-best safety provider
-cost benefit analysis

Front 34

1st element of breach of duty

What is forseeability?

Back 34

•Probability that something is going to happen
- Standard – reasonable care under the circumstances [ reasonable person under the circumstances]
•Jury decide if conduct is foreseeable
•Failure to take reasonable steps to prevent unreasonable injury from reasonably foreseeable accidents is negligence
oAnticipate environment, design reasonably against risks

Front 35

Carroll Towing Co.. Test

Back 35

Burden < Probability x

Liability/gravity of resulting injury

Front 36

Restatement 3rd - forseeability

Back 36

•Restatement 3rd = owners duty is a function of 3 variables
1.foreseeable likelihood that the person’s conduct will result
2.the foreseeable severity of any harm that may ensue
3.the burden of precautions to eliminate or reduce the risk of harm

Front 37

How to access responsibility when 1 or more person is negligent

Back 37

-comparative fault
-joint & several liability
-insolvent or immune tortfeasors

Front 38

What is joint & several liability?

Back 38

-joint & several – plaintiff can enforce her tort claim against either tortfeasor, she can obtain actual judgment against both, but cannot collect more than full damages (if one defendant is insolvent or immune), requires solvent tortfeasor to pick up and pay the insolvent, uninsured or immune tortfeasors share, chance to get 100 % of money

-several – tortfeasor is liable for more than his proportional share, if one defendant is insolvent of immune do not collect extra from the other, not paying for share of fault you are not responsible for

Front 39

Proving & evaluating conduct

Back 39

-plaintiff must prove each element of the case by a proponderance of evidence that is by greater weight of the evidence [ex: negligence must be shown more probable than not]

Front 40

Slip & Fall Cases

Back 40

Proof of negligent conduct in a slip and fall case requires a finding by jury that the owner of –or the employees at the premises either created a dangerous condition or had knowledge of the dangerous condition that lead to the fall and resulting injuries

Front 41

acting according to CUSTOM

Back 41

-even if defendant acts according to the custom of his industry, he may still be liable
o notwithstanding a custom of usage or the lack thereof, there are precautions so imperative that even their universal disregard will not excuse their omission

Front 42

Restatement 3rd - Custom

Back 42

an actors compliance with custom of the community, or of others in like circumstances, is evidence that the actor’s conduct is not negligent but does not produce a finding of negligence

Front 43

What is RES IPSA LOQUITUR (proving unspecified negligence)

** BARREL TIFFANY :) **

Back 43

"The thing speaks for itself"
res ipsa loquitur = rebuttable presumption or inference that the defendant was negligent, which arises upon proof that the instrumentality causing injury was in the defendant’s exclusive control, the accident was one which ordinarily does not happen in the absence of negligence, and the plaintiff did not contribute to his own injuries

Front 44

Elements of Res Ipsa Loquitur

Back 44

Elements:
1.accident does not normally happen
2.other responses (alternative conduct) causes sufficiently elemental breach
3.“n” is within duty owed by defendant to plaintiff
* Defendant needs to give some type of explanation to the jury

Front 45

Restatement 2nd - Res Ipsa

Back 45

3 modern courts for Res Ipsa plaintiff must prove:
1.the event is of a kind which ordinarily foes not occur in the absence of negligence
2.other responsible causes, including the conduct of the plaintiff & the 3rd persons are sufficiently eliminated by the evidence AND
3.the indicated negligence if within the scope of the defendant duty to the plaintiff

Front 46

Important points res ipsa

Back 46

-negligence more probable than not
o how determine probabilites = common experience in life
o res ipsa is applied in the absence of a substantial, significant or probable explanation
- pure speculation does not create res ipsa
- for res ipsa to apply a defendant need only have a degree of control or responsibility such as his negligence was more probably than not the cause of the injuries

Front 47

What is more than 1 defendant is involved? (res ipsa)

Back 47

Where there are only 2 defendants who had consecutive control over the plaintiff and either could have caused the injured, and both are named in complaint, the complaint is sufficient for pleading purposes to raise the inference of negligence under the res ipsa doctrine

Front 48

What is Harm & Cause in fact ??
** 3rd Element **

Back 48

1.Actual Harm = legally cognizable harm
-in negligence cases, no loss means no nominal damages
-need to show actual harm for nominal damages ($1 or 6 cents)
2.Cause in Fact = but for test of causation

Front 49

What is a cause in fact?

Back 49

-a cause in fact need not be the only cause of an accident
oa negligence claim requires proof by a proponderance of evidence of both causation in fact and proximate causation, and bother kinds of causation generally involve questions of fact that must be resolved by the jury, unless the uncontroverted facts and all reasonable inferenced to be drawn therefrom make the case so clear that all reasonable persons would agree on the outcome

Front 50

What is But-for-cause ?

Back 50

the cause without which the event could not have occurred (actual cause, cause in fact, factual cause)

Front 51

Limits/Alternatives to Bur-For- Test

Back 51

1.substantial factor
a.if 2 more causes occur to bring about harm, a tortfeasor is liable if its wrongdoing was a material or substantial element in causing the harm
2.divisible injury
3.indivisible injury
a.2 independent parties substantially contribute to injury
4.preemptive causation

Front 52

What is the proof needed?

Back 52

Proof – liability for negligence attached only when actual cause links the defendant’s negligence to the plaintiff injury

Front 53

What alternative causation rule is established when two ppl are negligent but only one could have caused the injury?

Back 53

They are jointly & severally liable unless proof that one caused the injury

Front 54

What is the loss of opportunity outcome?

Back 54

plaintiff may recover for a loss of opportunity injury in medical malpractice cases when the defendant’s alleged negligence aggravated the plaintiffs prexisiting injury, such that it deprives the plaintiff of a substantially better outcome

Front 55

What are the 3 loss of opportunity theories ?

- 1st theory

Back 55

1)P must prove he was deprived of at least 51% chance of a more favorable outcome than actually received. “all or nothing” approach bc if she could establish the causal link by establishing that absent the negligence, she would have had at least 51% chance of a better outcome, then she would be awarded for the entire injury. (Problem: doctors wouldn’t have the incentive to treat patients with less than 50% chance)
• some courts have relaxed causation when a physician has caused less than 50% loss of chance

Front 56

What are the 3 loss of opportunity theories ?

- 2nd theory

Back 56

2) P must prove D’s negligence more likely than not increased the harm to P or destroyed a substantial possibility of a better outcome. This is relaxed causation. Must show her harm was increased by a certain degree (changes per jurisdiction)

Front 57

What are the 3 loss of opportunity theories ?

- 3rd theory

Back 57

3) the lost opportunity itself is the injury from which P can recover. P received just the damages for the lost opportunity, not for the whole injury

Front 58

What are the elements of proximate cause?

** 4th Element **

Back 58

1. Type of Harm - not all harms are compensable, had to be reasonably foreseeable
2. Who is harmed - are they within the harm of apprehension
3. Mechanism of harm - if it is so outrageous, it is not foreseeable
4. Extent of the harm - what is the full extent of the injury

Front 59

Elements of type of harm?

Back 59

- risk rule
- rescue doctrine
- scope of risk

Front 60

What is the risk rule? (within type of harm elements)

Back 60

•Decided by the jury
•Defendant not liable for unforeseeable harms
•The risk reasonably to be perceived defines the duty to be obeyed
•Need to be within a certain ZONE for a duty to be owed
•Zone = range of apprehension

Front 61

Risk rule - attached to type of harm

Back 61

For a defendant to be held liable for negligence, the harm or injury caused must be within the foreseeable scope of risk created by the defendant’s negligence
• Restatement – the actors liability is limited to those physical harms that result from the risks that made the actors conduct tortuous

Front 62

what is the rescue doctrine (type of harm element)?

Back 62

•The rescuer can recover from the defendant whose negligence prompts the rescue
•Within the range of apprehension as acting as rescuer

Front 63

what is the scope of risk (type of harm element)?

Back 63

-Proximate cause – the prox. Cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient and internvening cause, produces and injury, and without which the injury would not have occurred
-Prox. Cause requires only that the general kind of harm be foreseeable for an actors conduct to be considered the proximate cause of plaintiffs injuries

Front 64

Elements of the scope of risk?

Back 64

- what is scope of risk
- forseeability
- intervening act

Front 65

what is scope of risk?

Back 65

•A harm is outside the scope of risk simply because it occurs in an unexpected manner
•the fact that the defendant’s negligence cause a known harm in an unforeseeable manner does not relieve him of liability

Front 66

what is forseeability in relation to scope of risk?

Back 66

•Take defendant as you find them
* Thin skull rule/ egg shell victim

Front 67

what is an intervening act in relation to scope of risk?

Back 67

• Act of some 2nd tortfeasor shud relieve the 1st tortfeasor only when the resulting harm is outside the scope of the risk negligently created by the 1st tortfeasor
•Intervening act will severe the causal chain where so unexpected and become the superseding cause then NOT responsible === and jury issue if criminal acts are foreseeable
•When an intervening occurrence was foreseeable by the defendant, the causal chain of event remains intact and the defendant’s original negligence remains a proximate cause of plaintiffs injury

Front 68

what is an intervening cause?

Back 68

Intervening cause = an event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury. If the intervening cause is so strong enough relieve the wrongdoer of any liability, it become a superseding cause

Front 69

What is a superseding cause?

Back 69

Superseding cause – an intervening act or force that the law considers sufficient to override the case for which the original torts feasor was responsible, thereby exonerating the tortfeasor from liability

Front 70

what are negligent intervening acts

Back 70

An intervening act may not sever a superseding cause, and relieve an actor of responsibility, where the risk of intervening act occurring is the very same risk which renders the actor negligent

Front 71

Intentional OR criminal intervening acts

Back 71

Can not forsee criminal acts of others, so unexpected, so unordinary
•Forseeability of an intervening act can be a question of law or fact, depending on the circumstances