Torts - Negligence

Front 1

Negligence

Back 1

conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm

Front 2

What are the elements of a cause of action for Negligence?

Back 2

Duty
Breach of Duty
Causation
Damages

Front 3

What is a duty?

Back 3

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

Front 4

How is a duty established?

Back 4

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)

Hint 4

likelihood and an equation

Front 5

What is the standard of care?

Back 5

reasonable man of ordinary prudence under like circumstances

Hint 5

What kind of man?

Front 6

What are exceptions to the reasonable man standard?

Back 6

- 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

Front 7

May an actor be liable for negligence in an emergency situation?

Back 7

If the event is unforeseen, sudden, and unexpected - NO

if the event is caused by the actor - YES

Front 8

What is the standard of care for professionals?

Back 8

actor must exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities

Front 9

When is expert testimony necessary to prove a standard of care?

Back 9

- if the negligence is not apparent for a laymen to recognize
- to show treatment deviated from the method approved by the medical community

Front 10

Negligence Per Se

Back 10

violation of a statute

negligence by itself; a duty established by the legislature that if breached and causes injury results in liability for negligence

Front 11

Exceptions for Negligence Per Se

Back 11

- where compliance would cause more danger than violation
- where compliance is beyond actor's control

Front 12

Breach of Duty

(Proof)

Back 12

must show what in fact happened

must be shown from these facts that defendant acted unreasonably

Hint 12

What do you have to "show"?

Front 13

How is the breach of duty established?

Back 13

- custom or usage
- violation of statute
- res ipsa loquitur

Front 14

Res Ipsa Loquitur

Back 14

"the thing speaks for itself"

the mere fact of the events raises the inference of negligence

Hint 14

This might "mere"ly "raise" something

Front 15

What are the required preconditions of Res Ipsa Loquitur?

Back 15

- under exclusive control of the defendant or defendant servants
- not happen in ordinary time with reasonable care

Front 16

Is there a conclusive presumption of duty and breach in negligence per se?

Back 16

Yes and no.
Majority - irrebuttable presumption of negligence that cannot be overcome
Minority - rebuttable presumption overcome by intro of contrary evidence

Hint 16

Can you "rebut" this?

Front 17

What if there are multiple defendants involved in Res Ipsa Loquitur?

Back 17

Res Ipsa Loquitur may generally not be used to establish negligence

(but see: defendants must establish his negligence did not cause the injury)

Front 18

Sine Qua Non

Back 18

"without which not"

indispensable and essential action, condition, or ingredient

Causation in Fact

Front 19

How is actual cause established?

Back 19

- "but for" test

- substantial factor test

Hint 19

What are the tests?

Front 20

"but for" test

Back 20

when the injury would not have occurred BUT FOR the act

(when several acts combine but none alone would be sufficient to cause injury)

Front 21

substantial factor test

Back 21

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)

Front 22

Proximate Cause

Back 22

standard placed by courts for limiting liability for consequences of act so the defendant is not held liable for highly extraordinary consequences of conduct

Front 23

What tests determine whether the act is the proximate cause of harm?

Back 23

Foreseeability (Cardozo - Danger Zone)

Hindsight (Andrews - anyone reasonably foreseeable)

Hint 23

a disagreement over the theme from "Top Gun"

Front 24

eggshell skull rule

Back 24

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)

Front 25

Intervening Superseding Cause

Back 25

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

Hint 25

How is it determined?

Front 26

Is suicide an intervening superseding cause?

What about a criminal act?

Back 26

No

Sometimes

Front 27

What is the Rescue Doctrine?

Back 27

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

Front 28

What are compensatory damages?

Back 28

- restore the victim to status before the injury
- award the closest possile financial equivalent of loss or harm

Front 29

What are punitive damages?

Back 29

awarded to punish, make an example of, or deter the defendant

Front 30

What are nominal damages?

Back 30

a small sum to vindicate rights, carry part of the costs of action, or prevent the defendant from acquiring rights

(damages "in name only")

Front 31

What damages are available for personal injuries?

Back 31

special damages (economic)

general damages (non-economic)

Front 32

What is the maximum recovery rule?

Back 32

when a jury exceeds the maximum amount a jury could reasonably find, a judge may reduce the award to the highest amount properly found

Front 33

What kind of damages must a plaintiff show in a cause of action for negligence?

Back 33

Actual damages must be shown to recover for negligence.

Front 34

What is an action for Wrongful Death?

Back 34

Statutory law allowing certain beneficiaries to recover pecuniary damages for the death of a victim.

(this action is for the beneficiaries' damages)

Hint 34

beneficiaries

Front 35

Distinguish a Survival Action and an Action for Wrongful Death.

Back 35

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

Front 36

What is Contributory Negligence?

Back 36

Conduct that falls below the standard of care established by law for the protection of others from unreasonable risk of harm by the PLAINTIFF

Front 37

What purpose does Contributory Negligence serve?

Back 37

An affirmative defense for the defendant that requires proof of the 4 elements of an action for negligence.

Front 38

What is the doctrine of last clear chance?

Back 38

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

Front 39

Define Cause

Back 39

the process by which A brings about B

Front 40

Define Foreseeability of Harm

Back 40

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

Hint 40

Likelihood and the likelihood is heavy

Front 41

What is a Survival Action?

Back 41

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)