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    • Negligence exists where an actor had a 1) duty to use reasonable care, 2) they breached that duty, 3) there was a close and causal connection b/t the conduct and the resulting injury, and there was 4) actual loss or damage resulting to the interest of another.
    • Policy: In negligence, courts attempt to balance the need for compensation against not extending liability too far. A goal is to affect public change in expectations, deterring conduct, and incentivizing the public to make things safer.
  2. "Therefore, it must first be determined what <P's> duty to use reasonable care was in relation to <D>."
    In this def,...
    DUTY: Duty stems from public policy in that there is a certain standard of conduct society requires one to exercise in order to protect others from unreasonable risks/injuries.

    DUTY is informed by the SOC, which is that of an average reasonable man of ordinary prudence in similar circumstances.

    In this definition, the "average reasonable man" refers to an adult SOC, which will/will not apply to <D>. This is an objective standard, due to the problem of hindsight. It is easy to look back in time and say someone should have acted differently because the harm did actually occur as a result of D's conduct. Therefore, we use an objective standard of how a reasonable person would act under similar circumstances to determine foreseeability/duty.

    • If <D> is deemed negligent, it is assumed that he could have avoided the harm had he acted reasonably and exercised reasonable care. (Control-no way to avoid harm, not NEG) (Apply to facts)
    • Relationship/Expectation

    Custom/Industry Practice:

    Cost/Benefit Analysis:
    • Custom/Industry Practice: When industry practice removes certain dangers, custom may be evidence one has failed to act as a reasonable person under the circumstances. 
    • Courts do not expect D's to provide absolute safety, but they should take out insurance to bear the cost/loss

    Cost/Benefit Analysis: Carroll Towing algebraic formula, although not a certain equation, determines whether a party breached its duty of care. If <D's> burden to avoid the harm is less than the probable harm and the gravity of harm, then D breached its duty.

    Generally, a minor is held only to the exercise of such a degree of care and discretion as is reasonably expected from minors of his/her age. To determine this, courts look at minors of similar age, intelligence, and experience. Society makes allowances for minors because they cannot look out for the interests of the public the same way adults can, so minors are afforded a different SOC. However, where the activity the minor engages in is inherently dangerous, the child should be held to an adult SOC. This is because when minors are engaged in dangerous activity, they pose a high risk of harm to society, so this exception protects the public interest.

    Mental Illness
    Generally, mental illness is not a defense to negligence and individuals are still judged by the standard of a reasonable person. This is because when two innocent parties must suffer a loss, it should be born by the one who occasioned it. Also, to induce those interested in the estate of the insane person to restrain and control him, as well as to stop false claims of insanity to avoid liability. While courts are not suspicious of physical b/c it is easy to prove, mental is. Already responsible in IT. However, where insanity is unforeseeable, the reasonable standard is altered, not NEG

    Physical Handicapped
    Individuals with physical handicaps are held to a reasonable SOC for a person with their disability, so the handicap is considered part of their circumstances. The reason for this is the avoidance principle, the law should only hold people accountable had they been able to reasonable be able to avoid the harm. However, this is not a complete defense to negligence. Society makes allowances for the disabled because they cannot look out for the interest of the public the same way adults without disability can, so their SOC is altered. Courts are not suspicious of physical handicaps as opposed to mental because it is easy to prove.

    • In an emergency, the law does not hold a person to the same standard as if he had the opportunity to deliberate. The circumstances dictate what is or is not prudent action. An emergency is unforeseen, sudden, and unexpected. Therefore, the actor has no time to consider options to exercise reasonable care. An emergency situation is not a complete defense to negligence, the reasonable standard simply changes in this situation.This is because we want people to try help others in emergencies; otherwise, people may standby and watch without aiding in fear of being liable for unsuccessful actions. 
    • CONSENT: In emergency situations, it is assumed that if the injured party were capable, they would give consent. This is because the suffering party would obviously want life-saving help.

    • A professional SOC is one that an ordinary, prudent professional, having the same training and experience, would have used in similar circumstances. This is an objective test, looking at a professional in that specific profession. Professionals have a higher SOC because they have specific and superior knowledge and special skills.
    • When individuals holds themselves out as professionals, they create an expectation and set a SOC. One can raise the bar, but it cannot be lowered. In every interaction between a professional and an ordinary person, there is an expectation of trust and confidence that informs the professional's duty towards the person.
    • Professionals are not expected to know everything, just what an ordinary person in their profession knows.

    Professionals: Attorney Malpractice
    • Attorneys are not liable for errors in judgment or mistakes of law if they are made in good faith and the attorney uses reasonable care and diligence that other attorneys similarly situated would use. Attorneys have a special relationship with clients of trust and confidence, raising their SOC.
    • An attorney's conduct may be questioned regarding 1) possession of knowledge or skill (not expected to know everything, just ordinary member of profession), 2) exercise of best judgment (clients in charge of case, client chooses options attorney presents, not liable for mere errors of judgment), and 3) use of due diligence (in application of pro's skill and knowledge, let people know what is going on)
    • MUST SHOW but for attorney's negligence, the client would have been successful in prosecuting or defending his claim

    Professionals: Medical Malpractice
    • A physician's testimony that he would have followed a different course of treatment does not establish a professional SOC unless it also appears that the course of the treatment deviated from the standards establishes in the medical community. .
    • Patients have an expectation of trust and confidence in doctors.
    • Causation Probs: timing, other factors come into play
    • Difficulty: SOC changes 
    • Could be different level of care depending on locale 
    • Informed consent: 2 duties->1) Did you perform treatment negligently itself? 2) Inform of risks/alternatives
    • Patient suing must prove:
    • 1. Physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment (duty to perform risk)
    • 2. If he had been informed of the risks he would not have consented to the treatment (Some jut. subjective, reasonable patient, reasonable physician)(Problem: hindsight, suspicious of this argument
    • 3. The adverse consequence that were not made known did in fact occur and he was injured as a result of being submitted to the treatment. 
    • As a defense, physician may plead and prove: 
    • 1) P knew of the risk (obvious, common knowledge)
    • 2) Full disclosure would be detrimental to patient's best interest
    • 3) An emergency existed requiring prompt treatment and patient was in no position to decide for himself
    • Disclosures: Physician seeking patient's consent must disclose personal interest unrelated to patient's health, whether research or economic, that may affect his judgment

    • Statues are legislative statements of public interest, designed to protect just that. They set forth a standard and can be a shortcut to establish duty. They also limit jury and judicial discretion. A problem with statutes is that using them in civil law is really borrowing from a criminal statute by analogy.
    • To determine if this analogy is appropriate, one must look at the scope/legislative intent of the statute. What class of people are being protected? What conduct are we concerned about? 
    • If your actions fit this=therefore you violated the statute and there is a causal connection between the particular violation and the resulting harm
    • Compensation: express-positive law; implied-intent
    • D: Not what statute intended to protect, could have made civil statute and did not
    • P: Legislative intent, scope, purpose (Prob: how to determine?)
    • Effect of statutes:
    • 1) NEG per se: conclusive presumption of NEG, pro-plaintiff b/c D is liable with no defense (you violate statute and hurt the people the statute was trying to protect)
    • 2) Rebuttable presumption: establish in statute, ball in D's court
    • 3) Evidentiary: does not establish anything conclusively, generous to D

    Statutes: Causation
    • If violation of a statute has no direct bearing on the injury, proof of the violation becomes irrelevant
    • Can violate a statute if it is more dangerous to actually comply with the statute than not
  13. PROOF of Notice

    Circumstantial Evidence
    • If event making conditions unsafe is instantaneous, may be unreasonable to deem business/person should have had notice (New banana v. old banana)
    • No evidence to establish D had notice of hazard-->no NEG
  14. Res Ipsa Loquitor

    • 1) Accident
    • 2) The instrumentality that caused the accident at the time of or prior thereto was under the exclusive control and management of D, eliminated all other causes
    • 3) The accident was such that in the ordinary course of events, D using ordinary care, the accident would not have happened (Prob: NEG v. accident)
    • 4) P cannot prove NEG by D
  15. Res Ipsa Loquitor

    Assumptions (6)
    • 1) D had a duty to exercise reasonable care to P, P cannot prove it
    • 2) Impossibility of proof
    • 3) Does not define duty or prove causation
    • 4) Helps overcome a directed verdict
    • 5) Practical impact: outcome determinative in favor of P, no one can actually prove what happened
    • 6) Allows jury to infer NEG when an action that normally only occurs when someone is negligent happens, and P is unable to prove NEG
  16. Res Ipsa Loquitor

    • Multiple Actors: problem with exclusivity of control
    • When P gets unusual injuries while unconscious, all D's who had control over his body and the instrumentalities which may have controlled it are liable (All neg, then people will admit who did it)
  17. Cause in Fact
    • Burden on P to demo causal connection between actor and resulting injury.
    • Time: longer time gap, could say harm caused by something else
    • Accountability-policy
    • Traditionally, courts use the but for test, which posits, "But for your conduct, the harm would not have ensured"
    • Probs: Ad hoc/propter hoc: just because something happened prior to an injury does not mean you caused it (more than a possibility, actual PROBABILITY) 
    • Natural course of events
    • Would this have happened anyway? Where NEG of D greatly multiplies chances of accident to P, and is of character naturally leading to its occurrence, mere possibility it might have happened w/o neg is not sufficient to break the chain of cause and effect
  18. Cause in Fact 

    Substantial factor test
    Problems with but for: 

    • Multiple Actors: in but for, no liability-policy: someone should be accountable ; where separate acts of NEG combine to produce directly a single injury, each is responsible for entire result 
    • Diminimus causation: minor contribution; in causal chain, but not the principle actor; policy: appropriate to hold them fully accountable?
    • Third Party: set something in motion, violated a duty of care, but third party comes in...break causal connection? If you could have contemplated or foreseen third party action, then causal chain is not broken
    • ALL FIXED BY SUBSTANTIAL FACTOR TEST: you actions were a substantial factor in producing the harm; more than diminimus, not absolute (ruling out extremes)
  19. Expert Testimony

    Daughbert Test:
    Other considerations:
    • Policy: concern of confusing juries, unduly persuading juries, "generally accepted" majority view, but minority view may not be wrong
    • Test: Expert by knowledge, skill, experience, training, education may testify if...1) expert's knowledge will help the trier of fact to understand the evidence and determine a fact in issue 2) testimony based on sufficient facts or data 3) the testimony is the product of reliable principles 4) expert has reliably applied principles to the facts of the case.
    • Themes: valuable to jury? relevance, reliability, helpfulness, court as gatekeeper
    • Reliability: 1) Can it (theory) be tested or challenged objectively? 2) Is it subject to peer review and evaluation? 3) Error rate? How relabel is study? 4) To what extent did you apply standards and controls? 5) Is that technique "generally accepted" in the scientific community? 
    • Other: 1) Expert prepare info just for litigation? 2) Expert adequately account for alt views? 3) In this case, being as reliable and careful as typical? 4) Make a leap of logic to something not supported? 5) Field known for reaching reliable results?
  20. Proof Prob: Who caused harm?

    Multiple NEG actors
    • Typically, burden on P, but in cases with multiple actors and unsure which caused harm, burden shifts to D to show their NEG did not cause injury
    • 1) Event would not have occurred w/o NEG
    • 2) Not an accident
    • Policy: If we do not impose liability on someone, injured and innocent will be uncompensated. The loss should fall on the responsible, not the innocent. Deterrence function: message to public
  21. Prob: Who caused harm?

    Market Share Liability
    • Each D will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused P's injured.
    • Policy: CO's are in better position to compensate and take avoidance measures
  22. Proximate Cause


    Unforeseeable consequences
    Line drawing mechanism to limit liability within reasonable boundaries. Fairness. In PC, the court generally analyzes the facts, science, risk/utility, and economics. 

    D must take P as he finds him, so he may be liable for damages for an aggravation of a pre-existing condition (You produce physical result, mental attaches with it
  23. Proximate Cause

    • A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. D owes a duty of care only to those who are in the reasonably foreseeable zone of danger. So, cannot have a duty to those whom you cannot perceive to be in danger of your actions. 
    • This approach outlines a narrow zone of duty in the first instance, before one even can consider the question of proximate cause
  24. Proximate Cause

    Duty to the world, while foreseeabiltiy is a limiter. Andrews outlines "hints" as to what factors the court should consider in order to lead to a rough sense of justice in terms of proximate cause. The first factor is cause and effect, which brings back the historical direct/indirect view of cause. This rigid view was rigid and did not take foreseeabiltiy into account, so one could be liable for excessive for bizarre harm. However, this is just one factor Andrews believes is relevant. Also, public policy should be considered, like fairness and a rough sense of justice. Whether there was a natural and continuous sequence (typical, rather than extraordinary), whether D was a substantial factor, time and space (remoteness), and foreseeabiltity are all taken into account additionally. When these factors are considered in light of one's duty to the world, Andrews believe this leads to a rough sense of justice in regards to attaching liability and assigning proximate cause.
  25. Proximate cause:

    Cardozo v. Andrews
    • C: Judge determine duty-->PC
    • A: Jury determine PC
  26. Proximate Cause

    Intervening Causes
    • An intervening cause, which is unforeseeable or an extraordinary event, cab break the causal connection if it becomes superseding. In this case, you could otherwise be negligent, but a third party intervened and took over your negligence (superseding). This policy considers foreseeability, in that one is not liable to the world, only for what is reasonably foreseeable. 
    • Timing: Ad hoc/propter hoc
    • Checklist:
    • 1) Third party, not me
    • 2) Relationship to third party?
    • 3) Timing-occurred after my own NEG
    • 4) Character of the act itself (third party action)-highly unusual or extraordinary based on the circumstances? (more=less foreseeable)
    • 5) Would responsible party have reason to expect that a third party intervention to occur or not? Foreseeability?
    • 6) Type of harm-is what happened here in third party behavior the kind of harm that is different in kind that what is ordinarily expected or not?
    • ALL YES-severs liability (narrow exception to NEG)
    • Policy: I cannot be accountable for everything a third party does
Card Set:
2014-11-24 23:03:46
Torts Negligence
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