Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
40 Cards in this Set
- Front
- Back
|
Negligence
|
A plaintiff must prove by a preponderance of evidence each element of the prima facie case of ________. (51%)The elements that must be satisfied are duty, breach, actual cause, proximate cause and damages.
|
|
|
Duty
|
An actor has to a duty to act reasonably when the actor's conduct creates a risk of physical harm.
|
|
|
Adult standard of care
|
Under the adult standard of care, the defendant must behave as a reasonably prudent person under like circumstances.
|
|
|
Child Standard of Care
|
Minor/infants should be judged against children of the same age, experience, education, and intelligence. Modernly, children performing adult activities will be held to an adult (objective standard of care). An adult activity is one that is typically practiced by adults or one that is inherently dangerous. The _____ can vary based on the sociology/culture of the particular society.
|
|
|
Physically Disabled Persons
|
______ bear the burden of acting as reasonable persons with the same disabilities.
|
|
|
Medical Malpractice
|
Plaintiff must produce a medical expert to testify as to the standard of care i.e., what a reasonably prudent physician would have done under same/similar circumstances. For hospitals and specialists there is a national standard that is followed. For general practitioners, the similar locality standard is followed. Doctors from a similar community can testify. Factors to determine similar locality are the size of the community; socioeconomic factors; urban or rural; available tech./education; and similar part of the country. The exception to the medical expert standard of care occurs where the conduct is so obvious that even a layperson can determine that a standard was breached.
|
|
|
Informed Consent Doctrine
|
The ______ doctrine applies when there is a failure to disclose material risks to plaintiff before surgery and plaintiff under RPP standard would not have undergone treatment if they had been properly informed. The exceptions to this are mental incompetency/incapacity; emergency; psychological/emotional damage to plaintiff by informing them might inhibit plaintiff from making a clear/sensible decision.
|
|
|
Learned Hand formula
|
The_____ is as follows: Burden < Probability of harm X Gravity of Loss. If the burden of preventing harm is less than the probability of harm times the gravity of potential loss, there is liability. If the burden of preventing harm is more than the probability of harm times the gravity of potential loss, there is no liability.
|
|
|
Cardozo v. Andrews
|
According to Cardozo in Palsgraf, the plaintiff must be within the orbit of danger. There is an obligation to exercise due care towards any plaintiffs that might be affected (i.e., foreseeable plaintiff, foreseeable harm). On the other hand, Andrews argues that the question is whether the defendant's admittedly negligent act directly caused the harm. Every person has a duty to act reasonably and that duty extends to everyone who might be affected by our actions, until the judge cuts off liability or the jury decides that the effect was no longer caused by the negligent act.
|
|
|
Negligence per se
|
Martin v. Herzog determined that an unexcused violation of a criminal statute is considered negligence as a matter of law if (1) plaintiff is in the class of persons the statute is meant to protect and (2) the injury/harm suffered is the type the statute is meant to protect against.
|
|
|
Exceptions to negligence per se
|
The majority follows negligence per se with five exceptions; (1) Childhood/infancy/physical disability; (2) actor exercises reasonable care in attempting to comply with the statute; (3) actor neither knows or should know the circumstances giving rise to the violation of the statute; (4) violation is due to the confusing way the statute is presented to the public; (5) compliance involves a greater risk of physical harm than non-compliance.
Some minority jurisdictions believe that a violation of a statute is a presumption of negligence, which is rebuttable by showing evidence that the statute does not apply. Other minority jurisdictions believe that a violation of a statute is mere evidence of negligence. |
|
|
Rule of Non-feasance
|
In general one does not have a legal duty to act; therefore one cannot be held liable for failure to act. The exception to this is the existence of special relationships; (1) the parent and child "failure to protect" cause of action; (2) the "common carrier" rule where there is a heightened duty or an imposition of a duty where ordinarily none would have existed; (3) voluntary assumption of the risk in which one person moves to help another; they now have a duty to carry out the rescue attempt carefully; (4) D, by an innocent act, causes P to be placed at risk; D has to help them/pull them back; or (5) good samaritan statutes.
|
|
|
Breach
|
This occurs when there is a failure to adhere to the standard of care, i.e., there is a failure to act as a reasonable person with reasonable care.
|
|
|
Res Ipsa Loquitor
|
This occurs when there is no direct evidence of breach. The plaintiff must satisfy the following elements: (1) events or accidents of the type in question don't typically occur in the absence of negligence; (2) there is no other proximate cause of the accident other than the defendant's negligence. The majority rule states that this creates a permissive inference of negligence while the minority rule states that this creates a rebuttable presumption of negligent conduct.
|
|
|
Actual Cause
|
There are three tests to help determine whether there is ___ cause. The "but for" test states that but for the wrongful conduct, plaintiff would not have sustained injuries. The substantial factor test states that where two forces, both probably results of human negligence, combine to create an indivisible harm, both will be held jointly and severally liable. The joint tortfeasor test applies when two or more people expressly or impliedly agree on a joint course of action and the plaintiff's property is injured or destructed. If the plaintiff cannot prove what defendant was the cause, the court will treat both defendants as though they are joint tortfeasors.
|
|
|
Joint Enterprise
|
Where parties act together, the law will impute the negligent act of one to all those engaging in the ____.
|
|
|
Post Hoc Propter Hoc
|
Simply because something follows an action doesn't mean the action caused the result.
|
|
|
Preponderance of Evidence
|
Summers v. Tice determined that when only one defendant could have caused the harm, the burden of proof will still shift to the defendants to prove who caused the harm.
|
|
|
Proximate Cause
|
To determine_____cause we must determine whether the act directly caused the harm and whether the harm was foreseeable. To determine direct cause we consider the remoteness/closeness in time and space. In In Re Polemis, the court looked at the unbroken chain of events that began with the defendant's carelessness. To determine foreseeability we look at the opinions in Palsgraf. According to Cardozo the plaintiff must be within the orbit of danger. There is an obligation to exercise reasonable care to any plaintiffs who might be affected (i.e., foreseeable plaintiff, foreseeable harm). On the other hand, Andrews argues that the question is whether the defendant's admittedly negligent act directly caused the harm. Every person has a duty to act reasonably and that duty extends to everyone who might be affected by our actions until the judge cuts off liability or the jury decides that the effect was no longer caused by the negligent act.
|
|
|
Intervening Cause
|
Where the conduct of a third party is either innocent or negligent, but foreseeable, the original defendant is still liable for all of plaintiff's harm. The defendant is only relieved of liability if the concurrent or _____ factor is so unexpected or extraordinary that the defendant could not/ought not to have anticipated it.
|
|
|
Superseding cause
|
Where the conduct of a third party is either intentional or criminal and is not foreseeable, the original defendant is not liable for further harm to the plaintiff. The exception is if the intentional or criminal act is foreseeable.
|
|
|
Damages/Loss of Chance Doctrine
|
____ will be assessed based on the injuries the plaintiff sustained. Defendant is liable where his/her negligence deprives the plaintiff of the opportunity to avoid death or to be cured. However, there is a split of authority on how the damages will be calculated. The majority rule states that the _______ is an asset to be compensated, i.e., the total damages times the % chance of survival. The traditional rule states that the survival rates must be greater than 50% for the plaintiff to be compensated. If so, then the damages are 100% of the total damages. If it is less than 50%, then the damages are 0. (i.e., all or nothing rule).
|
|
|
Owner/Occupier Liability
|
An invitee enters the land, with permission, for the mutual benefit of both parties. The occupier has a duty to exercise reasonable care. A licensee enters the land, with permission, but more as a social guest rather than for a mutual benefit. The occupier has a duty to avoid wanton or reckless conduct, and must warn the entrant of known hidden dangers. A trespasser enters the land without the consent of the owner/occupier. The occupier's only duty to the trespasser is to avoid wanton and willful misconduct.
|
|
|
California Rule (Rowland v. Christian)
|
The occupier has a duty of reasonable care toward all regardless of the entrants' status. (Trespassers are still an exception)
|
|
|
Attractive nuisance doctrine
|
A possessor of land is subject to liability for physical harm to children trespassing caused by the artificial condition upon the land if (1) the owner/occupier knows or has reason to know that children are likely to trespass; (2) there is an unreasonable risk of death or serious bodily injury to the children; (3) children, because of their youth, don't discover the condition or realize the risk of danger; (4) the utility of maintaining the condition and eliminating the risk is slight compared to the risk to children; (5) the possessor's failure to exercise reasonable care to eliminate risk or otherwise to protect the children. This rule extends to the rescuer of such a person. If a child can avail him/herself of this doctrine, then so can the rescuer who essentially piggybacks on the rule.
|
|
|
Negligent infliction of emotional distress
|
The elements of ______ are the same as negligence with a few changes. For actual cause, but for the defendant's negligence, the plaintiff would not have suffered emotional distress. For proximate cause, the emotional distress must be foreseeable. For damages to be awarded there must be a valid expression of emotional distress; look to the injury from the incident itself and the injury which continues thereafter.
|
|
|
Impact Rule
|
The common law required some sort of physical injury or contact to allow recovery for plaintiff's emotional distress. Now about half the states allows recovery where emotional distress manifests itself with some physical symptoms. Courts are varied as to what type of manifestations will be sufficient to show validity of emotional distress. Examples include insomnia, nausea, appetite loss, dizziness, etc...
|
|
|
Zone of danger rule
|
Plaintiff must suffer emotional distress arising from an objectively reasonably threatening situation.
|
|
|
Dillon v. Legg
|
Under Dillon, to be able to recover we look at the following factors (1) Proximity in Space; (2) close familial relationship; (3) contemporaneous observation; and (4) severe emotional distress.
|
|
|
Contributory Negligence
|
_____negligence occurs when the plaintiff acts without due care for plaintiff's own safety. If the plaintiff is careless and the carelessness is a major contributing factor, the plaintiff will be barred from recovery. To prove ___ negligence, defendant must prove that plaintiff exposed himself to the risk, and there was a foreseeable risk of harm.
|
|
|
Comparative Negligence
|
Comparative Negligence allocates or apportions fault between the parties when the plaintiff's conduct is a factor in causing the injury. It must be proven that an RPP knew or should have known of the risk and would not have engaged in the conduct.
|
|
|
Pure Comparative Fault
|
Under ______, the jury must look to all the facts and make the determination of the role each party played in causing the accident. The plaintiff still recovers, but gets a reduction based on fault.
|
|
|
Incomplete Comparative Fault
|
If the plaintiff is 50% or more at fault, then the plaintiff will be barred from recovery. This doctrine is criticized because it violates the principles of apportioning damages based on degree of fault.
|
|
|
Assumption of Risk
|
To prevail on assumption of the risk, the defendant must show that the plaintiff knew of the risk he/she was embracing. The elements for assumption of the risk are (1) the party signing must be capable of signing; (2) there must be equal bargaining powers; (3) the contract is understandable and informs the signer of what they are giving up; (4) the contract can be in writing or oral. The exceptions to assumption of the risk are if there is unequal bargaining power between the parties; there is no public interest at issue; the assumption of the risk is contrary to public policy; or the waiver addresses gross negligence/recklessness or intentional misconduct.
|
|
|
Avoidable consequences
|
Plaintiffs have a duty to take precautionary measures and mitigate damages.
|
|
|
Vicarious Liability--Respondeat superior
|
The plaintiff must prove that the employee acted negligently and acted within the scope of employment. Scope means the accident occurred while the employee was furthering the interests of the employer. If the defendant takes a detour, they are still deemed to be within the scope of employment, and employer is still liable.
|
|
|
Apparent Authority
|
______ is based on an objective standard/reasonable belief.
|
|
|
Indemnity
|
_____ allows complete relief of financial liability. The person held liable collects money from the person at fault.
|
|
|
Contribution
|
____ allows partial relief for excess financial burden. It arises when there are multiple tortfeasors. Any person held liable can collect money from joint tortfeasors for their respective portions of fault. Modernly, the release of liability of one defendant, may release all defendants from liability. Joint and several liability allows the satisfaction of judgement against one defendant, and then that defendant can seek contribution of any other defendant.
|
|
|
Market Share Liability
|
For market share liability to apply, the plaintiff must sue a substantial portion of the defendants who were in the business of manufacturing the product. Each defendant will be held liable, but the liability is limited to the % of their market share. The exception to market liability is if the social benefit outweighs the risk of harm and the harm was defendant against as best as possible. The court will allow plaintiff to recover capped, statutory damages.
|
