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17 Cards in this Set
- Front
- Back
Duty |
To refrain from those acts that a reasonable person should foresee as posing an unreasonable risk of harm to a particular interest of a particular person |
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elements of duty |
1. What is a reasonable person? 2. Foreseeablity a. Hand test b. per se c. Res Ipsa Loquitur |
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Hand test |
1. probability of the accident P 2. gravity of the harm to be suffered L 3. Burden of adequate precaution B burden of knowing to refrain b1 burden of actually refraining b2 b1 + b2 >= P * L |
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statute - per se |
1. Isthe plaintiff included in a class of people that the legislation intended to protect? 2. Isthe injury the kind of injury that the legislation intended to prevent? 3. Isthe statute an appropriate measure of civil liability? |
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legislative intent (per se) |
a. Is there a purpose section?
b. Historical context that led to passage ofstatute or regulation. c. Plain meaning of the violated section d. Surrounding sections (Are they consistent or do they intend somethingelse? e. Are there gaps?ie. what did they not say? f. Title of the law g. Policy h. Common understanding of the world Legislative history |
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Appropriate means of civil liability? (per se) |
1. In a typical case would the court be ableto trace the causal chain from the plaintiff’s injury to the violation of thestatute?(should not look like causation. If it does it is wrong)
2. Is the imposition of civil liability or tortliability consistent with the degree of moral culpability that the legislatureassociated with the violation of the statute? (thepunishment associated with violation is an indication) |
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cause |
any and all consequences, no matter how novel or extraordinary (direct cause) |
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direct cause (elements) |
1. "but for" certain or uncertain; And 2. Material or substantial |
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"but for" |
Certain "but for" OR uncertain "but for" 1. the breach is of a character naturally leading to the occurrence of the injury; AND 2. breach greatly multiplies the chance/probability of injury |
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material or substantial (multiple causes) |
1. Was it the sole cause? if not 2. Would defendant's breach, by itself, have caused the plaintiff's injury? if not 3. Was defendant's breach the greater cause? if not 4. question for the jury |
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reasoning test |
1. Value (policy benefit) 2. link (how does ruling that way further the value?) 3. explanation. if you adopt the rule, then the value would occur; because they are motivated by .... and because they can make the change |
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res Ipsa Loquiter |
1. Must not be due to the plaintiff’s voluntaryaction
2. The condition for the accident does notordinarily occur outside of negligence 3. Plaintiff’s injury must have been caused by aninstrumentality under the defendants’ control |
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vicarious liability |
Respondeat Superior defendant and liable 3rd party shared the necessary relationship control enterprise theory - for the benefit injury occurred within the scope of that relationship |
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breach |
there was a duty to do something and the defendant do not do OR there was a duty to refrain from doing something and the defendant did it. aka. there was a duty that was shirked by defendant |
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Injury |
physical injury to person real property personal property |
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contributory negligence |
absolute bar to recovery, unless: def conduct was intentional def had the last chance to exercise reasonable care plain negligence is remote |
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comparative negligence |
allows reduced recovery. details to be provided |