Card Set Information

2013-11-12 10:51:44
Negligence Duty

Torts - Negligence
Show Answers:

  1. To establish a prima facie case for negligence, the following elements must be proved:
    1)  Existence of a duty on the part of D to conform to a specific standard of care for the protection of teh plaintiff against an unreasonable risk of injury;

    • 2) Breach of that duty by D

    3) Breach of that duty was the actual and proximate cause of P's injury.

    4) Damage to P's person or property.
  2. Duty of Care (Negligence)
    When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person.

    If D's conduct creates
  3. Factors Considered in Determining the Magnitude of the Risk for the Purpose of Determining Whether the Actor is Negligent
    1) The social value which the law attaches to the interests which are imperiled;

    2) the extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;

    3) the extent of the harm likely to be caused to the interests imperiled; 

    4) the number of persons whose interests are likely to be invaded if the risk takes effect in harm
  4. To qualify as an emergency, the event must be:
    unforseen, sudden, and unexpected.
  5. When does public policy trump the law?
    The policy basis of holding a permanently insane person liable for his tort is:

    1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; 

    2) to induce those interested in the estate of the insane person to restrain and control him; and

    3) the fear an insanity defense would lead to false claims of insanity to avoid liability
  6. Physician's and Consent
    A physcan seeking a patient's consent for a medical procedure must:

    1) disclose personal interests unrelated to the patient's health

    2) whether research or economic, that 

    3) may affect his medical judgment
  7. Requirements for Application of the Negligence Per Se Doctrine
    (1) D violated a statute; 

    (2) The statute was designed to protect against the same type of accident that D's conduct caused; and

    (3) The accident victim (Presumably P) falls within the class of the persons the statute was designed to protect.
  8. Negligence per se does not make D liable unless:
    P shows that there is a causal link between the act constituting a violation and the resulting injury.
  9. Ignorance of Need
    D neither knew nor should have known of the factual circumstances that rendered the statute applicable.
  10. Res Ipsa Loquitur
    "The Thing Speaks for Itself"

    Allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent.
  11. Requirements for Res Ipsa Loquitur
    (1) There must be no direct evidence of D's conduct in connection with the event;

    (2) P must demonstrate that the event is of a kind which ordinarily does no occur except through the negligence of someone else. 

    (3) P must show that the instrument which caused her injury was, at the relevant time, in the exclusive control of D. 

    (4) P must show that her injury was no due to her own action. 

    *Some (very few) courts have purported to hold that P must also show that a true explanation of the events is more readily accessible to D than to herself.