Negligence Flash

It is a violation of a reasonable duty of care, it's a creation of a risk that is socially unacceptable

Duty, Breach of duty, causation (Both cause in fact and proximate cause), Damages

The greater the social utility, the more reasonable the risk is.

You can't be prepared for every possible outcome. If you protect against ordinary occurances, than there is no negligence.

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.

Dangerous things that have appeal to children, e.g. railroad tracks.

The value of the thing that is dangerous against the ease with which it can be made safer. A cost benefit analysis.

Negligence = burden on the defendant < Probability of harm x severity of injury

An objective, reasonable person in your position standard. Not a subjective standard.

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.

Custom is important, but an industry may fall behind, it doesn't set the standard. (Shower glass case)

If you didn't cause it, then it's a reasonable person in the emergency situation. Emergencies are unforseen, sudden, and unexpected.

A reasonable person with that disability. We can't pretend that the blind can see.

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.

The standard of care for professionals is the standard of care of other professionals in that field and in that community.

Must possesso more than mere competence, not belonging to a reasonable man, must use care that a person with that speciality would use.

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)

By doing something that is forbidden, failing to do something that is required, by the recognized standard of good medical practice in your community.

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.

That of a board certified doctor nationally. Standard is nation wide.

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

• 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)

Both what a reasonable person would consider an important risk, nd what the patient has told the doctor that they consider important.

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?)

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.

• 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.)

It examines the cause and effect relationship between the conduct and the injury. But for.

Used to determine if liabilty should be cut off even though cause in fact has been established.

Fails the but for cause in fact test, no negligence. (hit by speeding train case)

Preponderance of the evidence, not beyond all reasonable doubt

Can't break the cause and effect chain merely by saying it could have happened anyways. Negligence. (Fat lady staircase)

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.

Both are held jointly and severally liable for the whole amount.

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.

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.

If the actor's conduct is a substantial facttor in the harm, and tehre is not reason to relieve the actor from liability.

We must draw the line somewhere. Damages beyond those normally anticipated is the general rule of drawing the line.

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.

You are not responsible for harms that could not be anticipated from the negligence (eggshell is an exceptoin)

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)

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.

Intervening causes do not break the chain of causation, while superceding causes do.

If your negligence caused a superceding, forseeable cause to break the chain, you are still liable.

Criminal acts and intentional torts.

If you cause a problem, you are inviting rescue. Danger invites rescue. You are liable for the rescuerer.

If it's an irresistable impluse, then no superceding cause, but if any planning or thought went into it, then superceding.

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.

Majority: If you give it to a minor, you are liable.

Minority: Liabile if you give it to a drunk adult as well.

Misfeasence is an act, nonfeasance is a failure to act

Only duty between the people who made the contract, no duty extends, unless the contract was for something intended for resale.

No, not unless there is a special relationship.

Not negligence, a contract dispute.

If you are on a joint venture, you owe a duty to protect the others on your venture.

Protect against unreasonable risk of harm, give first aid to ill or injured, care for them until they can be cared for by others.

Duty of protection and aid.

A duty to act to prevent further harm.

If your breach it, you are a proximate cause of the injury

Requires physical damage to person or property. Economic shockwaves would otherwise extend out forever.

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.

Negligence must cause the plaintiff to suffer some sort of physical contact, regardless of how severe.

Planitiff can recover if defendant's negligence produces emotional distress, and the distress causes a definite and objective physical injury.

Objective standard, what a normal individual would be effected by in that situation, reasonable person.

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.

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.

If born alive for even a second, wrongful death, but if not born alive, no wrongful death recovery.

child's claim, plantiff is claiming that their birth is a compensable harm, because of their horrible existence.

Parent's action for negligently caused birth of healthy child

Parent's claim for damages due to negligently caused birth of an unhealthy child.

You are reponsible for injury cuased by artificial conditions on your land "garage, house" but not natural conditions "Tree, rock"

Owner of land has duty to prevent unreasonable risk of harm to those in higyway, has a duty to inspect.

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.

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.

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.

They are people specifically invited on your land, and they are owed a duty to be informed about known dangers.

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.

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.

If both parties were negligent, and that caused the injury, no recovery.

If plantiff can show that defendant had last chance to avoid the harm and didn't, then plantiff can recover.

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.

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)

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.)