Negligence Flash

  1. What is negligence?
    It is a violation of a reasonable duty of care, it's a creation of a risk that is socially unacceptable
  2. What are the elements of negligence
    Duty, Breach of duty, causation (Both cause in fact and proximate cause), Damages
  3. What is the correlation between social utility and risk?
    The greater the social utility, the more reasonable the risk is.
  4. What if you follow normal procedures, and something extreme happens?
    You can't be prepared for every possible outcome. If you protect against ordinary occurances, than there is no negligence.
  5. What's the rule for drivers and passengers causing accidents?
    If the passenger causing the accident was not forseeable, no negligence. If it was forseeable, there is a breach of a driver's duty to drive safely.
  6. What are attractive nuisances?
    Dangerous things that have appeal to children, e.g. railroad tracks.
  7. What must we weigh in attractive nuisance negligence?
    The value of the thing that is dangerous against the ease with which it can be made safer. A cost benefit analysis.
  8. What is the negligence formula?
    Negligence = burden on the defendant < Probability of harm x severity of injury
  9. What standard should we use for a person's conduct?
    An objective, reasonable person in your position standard. Not a subjective standard.
  10. Do you actually have to know something is wrong for negligence to occur?
    If you have a duty to inspect, then anything that would be found with a reasonable inspection is negligence, regardless of whether the inspection had occured. You don't need to know, only should have known.
  11. Does custom set the standard of care?
    Custom is important, but an industry may fall behind, it doesn't set the standard. (Shower glass case)
  12. What the standard of care in an emergency?
    If you didn't cause it, then it's a reasonable person in the emergency situation. Emergencies are unforseen, sudden, and unexpected.
  13. What's the standard of care of a person with a physical disability?
    A reasonable person with that disability. We can't pretend that the blind can see.
  14. In insanity a defense to negligence?
    No, it is not, except for the minority rule, which says that a sudden, unforseen mental incapacity is treated like a sudden, unforseen physical incapacity. Majority rule says that mental deficienty does not relieve from liability except in cases of children.
  15. What is the standard of care for a professional?
    The standard of care for professionals is the standard of care of other professionals in that field and in that community.
  16. What if you hold your self out to have special skills?
    Must possesso more than mere competence, not belonging to a reasonable man, must use care that a person with that speciality would use.
  17. What if every professional makes the same mistake you do?
    If a reasonable professional in your position would have done the same thing, it is not negligence, even if it's the wrong thing. (Lawyer filing case)
  18. How can you be found liable for malpractice?
    By doing something that is forbidden, failing to do something that is required, by the recognized standard of good medical practice in your community.
  19. Do you need expect testimony in physician cases?
    Yes, except in cases where the negligence is redily apparent to anyone, e.g. chopped off the wrong leg, put a junior mint in your patient.
  20. If you are board certified, what is your standard of care?
    That of a board certified doctor nationally. Standard is nation wide.
  21. What are the two patient disclosure standards?
    Patient focused standard: What a reasonable patient would want to know about risks and alternative, and what the person actually asked about. All material risks.

    Physician focused standard: Doctor must disclose risks that other doctors in his community would disclose
  22. What are the two different causation standards for disclosure?
    • Subjective: Plantiff would not have chosen to get treatment if they knew the risks (minority)
    • Objective: Reasoanble patient would not have gotten the procedure, and patient would have not gotten it. (Majority)
  23. What is a material risk?
    Both what a reasonable person would consider an important risk, nd what the patient has told the doctor that they consider important.
  24. What are the rules for statutes setting the standard of care?
    If the plantiff a member of the class intended to be protected by the statute?

    Is the harm that occured the harm the legislature intended to prevent by adopting the statute?

    How appropriate it is to impose liability for violation of the statute? (duty not at common law, too obscure,? liability without fault?, direct from violation injury?)
  25. Res Ipsa Loquitor, what does it occur?
    If an incident that wouldn't occur normally without negligence occurs, and the defendant had exclusive control of the instrumentality of harm, then Res Ipsa Loquitor applies.
  26. What are the standards of Res Ipsa?
    • 1. Creates an inference of negligence (Jury can decide as they will)
    • 2. Creates a presumption of negligence. (Jury should infer negligence from it)
    • 3. Creates a presumption and shifts burden of proof to defendant. (Jury must assume negligence unless Defendant proves otherwise.)
  27. What is cause in fact?
    It examines the cause and effect relationship between the conduct and the injury. But for.
  28. What is proximate cause?
    Used to determine if liabilty should be cut off even though cause in fact has been established.
  29. What happens when the negligence does not cause the harm?
    Fails the but for cause in fact test, no negligence. (hit by speeding train case)
  30. What is the standard for negligence?
    Preponderance of the evidence, not beyond all reasonable doubt
  31. What happens when conduct greatly increases the risk of harm, but we don't know if it might have happened anyways?
    Can't break the cause and effect chain merely by saying it could have happened anyways. Negligence. (Fat lady staircase)
  32. What is lost chance, and what are the three outcomes?
    Lost chance is the loss of survival rate caused by medical malpractice.

    1. Liability for all harm (on the hook for everything)

    • 2. Liabilty for lost chance. (You get the percentage of your lost chance.)
    • 3. Denial of liability. If you fail the but for test, you get nothing.
  33. What happens when two sets of negligent acts serve as the but for to the injury?
    Both are held jointly and severally liable for the whole amount.
  34. Alternative causation
    When both actors have each acted negligently, and we can't determine which caused the injury, they are jointly and severally liable. Must sue both tortfeasors.
  35. What is market share liability?
    If your product causes damage, but many others make that product too, and we don't know who actually did it, you must pay your market share % of the damage.
  36. when is negligence proximate cause?
    If the actor's conduct is a substantial facttor in the harm, and tehre is not reason to relieve the actor from liability.
  37. What about unlimited liability?
    We must draw the line somewhere. Damages beyond those normally anticipated is the general rule of drawing the line.
  38. What's the eggshell plantiff rule?
    If you cause physical injury, you take the plantiff as you found them. If a normally small injury is serious in this planitiff, you are liable for it.
  39. Direct consequences test for proximate cause?
    You are not responsible for harms that could not be anticipated from the negligence (eggshell is an exceptoin)
  40. Even if you anticipate harm., what happens if a different harm occurs?
    No liability. Must be the harm that is forseeable. But if the harm that is forseeable occurs in a strange way, liability. (Rat vending machine case)
  41. Palsgraf v. Long Island Rail Road
    Proximate cause extends liability only to those within the zone of the reasonably forseeable planitiff. Palsgraf was too far away for the proximate cause to occur.
  42. Difference between intervening and superceding causes?
    Intervening causes do not break the chain of causation, while superceding causes do.
  43. What if the superceding cause was forseeable?
    If your negligence caused a superceding, forseeable cause to break the chain, you are still liable.
  44. What acts are almost always superceding?
    Criminal acts and intentional torts.
  45. What is the rescue doctrine?
    If you cause a problem, you are inviting rescue. Danger invites rescue. You are liable for the rescuerer.
  46. What about suicide and proximate cause?
    If it's an irresistable impluse, then no superceding cause, but if any planning or thought went into it, then superceding.
  47. What is the unintended consequences rule?
    You are responsible for damage that occurs after the negligence as a result of the initial harm. E.g. 2nd broken bone caused by the first.
  48. What are the rules for social hosts and alcohol?
    Majority: If you give it to a minor, you are liable.

    Minority: Liabile if you give it to a drunk adult as well.
  49. Explain nonfeasance and misfeasence
    Misfeasence is an act, nonfeasance is a failure to act
  50. What is the duty in contractual cases?
    Only duty between the people who made the contract, no duty extends, unless the contract was for something intended for resale.
  51. Do you have a duty to act for protection of others?
    No, not unless there is a special relationship.
  52. What's the general rule in pure economic loss?
    Not negligence, a contract dispute.
  53. What is the joint venture rule?
    If you are on a joint venture, you owe a duty to protect the others on your venture.
  54. What are the duties of common carriers and innkeepers.?
    Protect against unreasonable risk of harm, give first aid to ill or injured, care for them until they can be cared for by others.
  55. What duty is owed to a person in your custody?
    Duty of protection and aid.
  56. What duty to you owe to someone you have made helpless and in danger of further harm?
    A duty to act to prevent further harm.
  57. What about duty to prevent or warn?
    If your breach it, you are a proximate cause of the injury
  58. How can you recover for economic harm?
    Requires physical damage to person or property. Economic shockwaves would otherwise extend out forever.
  59. What are the rules for negligent infliction of emotional distress?
    Similar to purely economic harm, requires physical injury to person or property. Only exceptions are extreme circumstances such as erroneous notification of close relative's death.
  60. What is the impact rule for emotional distress?
    Negligence must cause the plaintiff to suffer some sort of physical contact, regardless of how severe.
  61. What is the physical manifestion test?
    Planitiff can recover if defendant's negligence produces emotional distress, and the distress causes a definite and objective physical injury.
  62. What is the standard for emotional distress?
    Objective standard, what a normal individual would be effected by in that situation, reasonable person.
  63. What is the thing rule?
    emotional distress must be caused by something that put you in the zone of danger, must also be closely related to the victim, and suffer emotional distress beyond that a disinterest witness would have and not an abnormal response to the circumstances.
  64. What's the Dillon/Legg forseeability rule?
    Bystanders who were not at risk recover when they were near the scene of the accident, shock resulted from direct emotoinal impact of th sensory and contemporaneous obersvation of the accident, and the P and victim were closely related.
  65. What about wrongful death?
    If born alive for even a second, wrongful death, but if not born alive, no wrongful death recovery.
  66. Explain wrongful life
    child's claim, plantiff is claiming that their birth is a compensable harm, because of their horrible existence.
  67. Explain wrongful conception
    Parent's action for negligently caused birth of healthy child
  68. Wrongful birth
    Parent's claim for damages due to negligently caused birth of an unhealthy child.
  69. Explain liablity for natural and artificial conditions
    You are reponsible for injury cuased by artificial conditions on your land "garage, house" but not natural conditions "Tree, rock"
  70. What about trees near a highway?
    Owner of land has duty to prevent unreasonable risk of harm to those in higyway, has a duty to inspect.
  71. What about possessor' activities on his land?
    Possessor is liable for harm to others outside the land caused by his activbity which he realizes or should reailize involves an unreasonable risk of harm to others outside.
  72. What dutys are owed to trespassers?
    A tresspasser is a person who enters or remapins upon land in possesion of anotehr wihtout privliedge to do so, there is no duty to maek the land safe or their activites safe, until you discover them, then you have a duty to warn them of dangerous things.
  73. What is a tolerated tresspassser, and what do you owe them?
    Tolerated trespasser is a person you know trespasses on your land and don't care, e.g. children playing. You owe them a duty to take reasonable care.
  74. What is a licensee, and what duty do you owe them
    They are people specifically invited on your land, and they are owed a duty to be informed about known dangers.
  75. What is a n invitee and what duty is owed them?
    Invitees are people on your land through general invitation (e.g. store) and they are owed a duty of reasonable inspection and matinance of the property.
  76. What is the lessor's duty to lessee and others?
    Liability for undisclosed conditions known to lessor and not lessee until lessee has reasonable opportunity to discover the condition.

    Liable for dangerou conditions present at transfer if they pose a risk to those outside the land.

    • If public will be admitted, lessor must exercise care to inspect and repair before transfering.
    • Lessor is liable for parts under lessor control,e ven if lesee can use them (common area)
    • ?Lessor is liable for harms that occur due to disrepair if they contracted to keep in repar.
  77. Contributory negligence:
    If both parties were negligent, and that caused the injury, no recovery.
  78. Last clear chance rule
    If plantiff can show that defendant had last chance to avoid the harm and didn't, then plantiff can recover.
  79. Difference between helpless and inattentive plantiff
    Helpless may recover if defendant knows or has reasont o know about the risk.

    Inattentive only if defendant knows of the peril and knows of the inattentiveness.
  80. Comparitive negligence, what kinds are there?
    3 kinds. Pure: You recover what your liability wasn't. If you were 75%, you get 25%.

    Modified: Negligence must be either < 50 or 51% (depends on jurisdiction) to recover.

    Slight: Only compairitve negligence if the negligenfe was slight (south dakota)
  81. Assumption of risk, implied vs. express.
    Express: Actually dod something to actively take on the risk.

    Implied: Did something where certain risks are inherent and known (e.g. bumps on the subway.)
Card Set
Negligence Flash
Cooley negligence cards