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37 Cards in this Set
- Front
- Back
Negligence/prima facie case
Elements |
1. duty of reasonable care
2. breach of duty 3. causation 4. injury |
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"D was negligent" means
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breach of the standard of care
-careless -failed to excercise reasonable care |
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definition of negligence "breach"
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omission of doing something a reasonable person would do or acting in a way a reasonable person should
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qualities of a reasonable person
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-considers foreseeable risk of injury upon public
-considers risks in the light of the utility of the conduct -considers extent of risk -considers likelihood of a risk -alternatives pose lesser or greater risks -considers cost |
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Hand Formula for Duty (element definition)
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P=probability
L=loss/injury B=burden |
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Hand Formula liability (best with economic situation)
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B<PxL--duty
B=PxL---no duty B>PxL--no duty |
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Reasonable person under circumstances
(physical disability) |
required to act a reasonable person with that disability
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Reasonable person under circumstances
(dumb or mentally disable) |
Required to act a reasonable person
-held to the same standard as everyone else |
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Reasonable person under circumstances (Child)
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not held to adult standards of care
-reasonable person of like age, intelligence, and experience |
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reasonable person under the circumstances (child) exceptions
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child engaging in an adult activity
-driving |
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Circumstances: Emergency
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judging the reasonableness of conduct in an emergency situation
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Circumstances: Statute
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reasonable person obeys the law
-if D ignored he was negligent *must prove negligence based on violation of statute |
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Circumstances: Professional
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professional assumes the role of expert
-expected to employ the skills and knowledge of profession -NOT held to ordinary person |
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Circumstances: facility or resources
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Reasonable in certain situations
Ex. doctors office does exploratory surgery because no MRI |
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Statutory standards:Negligence Per Se-early cases
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If Violation of the statute the jury is required to find her negligent with no excuse
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Defense against Negligence Per Se
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Can only prove statute does not apply OR did not cause P's injury, CANNOT use excuse
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Statutory standards: Negligence Per se-common formula
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unexcused violation of a relevant statute is neg per se
-D may offer evidence of an excuse -sufficient reason |
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Negligence Per Se excuses
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-incapacity
-lack of knowledge of need to comply -inablity to comply -emergency -compliance poses greater risk that violation |
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Negligence per se is what element in a prima facie case?
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breach
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Presumption of negligence
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proof of statutory violation creates a presumption the violator was negligent
-can try to prove reasonable person would have acted the same |
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Presumption and Neg Pe se
have in common |
D can offer an excuse
if D does not the violation established negligence burder of proof on P *burden shifts after violation shown *if D offers excuse, P burden to convince jury conduct not reasonable |
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Evidence of Neg
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treat violation of statute as evidence of neg
-evidence that the defendant violated a statute is admissible at trial -may be persuaded on evidence alone or along with other evidence that the D was neg |
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Evidence of Neg, difference from Per Se and presumption
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even in the absence of rebutting evidence from the defendant jury is not compelled to find D neg
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Relevant statute
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only relevant in establishing negligence if it is meant to protect persons like the P from that type of harm which actually occured
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Res Ipsa Loquitur
-relevant case Byrne V. Handle |
the thing speaks for itsself
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Res Ipsa Loquitur
- special form of circumstantial evidence |
jury can reasonably infer negligence from the facts given
-more probable than not D was negligent |
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Res Ipsa Loquitur
-special form of circumstantial evidence cont. |
there is no showing of exactly how the accident happened but the fact the it happened at all suggests that someone was negligent
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P conduct on Res ipsa Loquitur
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P not barred if contribulatory neg -must show neg that created initial danger is attributable to the D rather than P
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Cause in fact
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the D act contributed to producing the P injury
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cause in fact: But for test
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the D conduct is a cause of the event if the event would not have occurred but for that conduct
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sine qua non
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without which it is not ; an indispensable requisite
-the injury would not have happened without D act |
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Cause in Fact: But for test (2 causes)
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no defense for one negligent actor that someone else's negligence also contributed to the accident
-doesnt have to be sole |
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Cause in Fact: Substantial Factor
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a material or substantial element
-2 fires merge into one and burned P property(multiple sufficient causes) |
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2 things jury decides in Substantial factor test
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1. what degree of causation is substantial
2. whether the d neg reaches that level |
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Summer V. Tice cause in fact rule
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When both Ds had committed the same neg act and one or the other injured the P
-court shifted the burden of proof to D to show not cause of harm -if can't then both liable - |
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Cause in fact: market share liability
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P can sue a # of manufactures , assuming are found at fault, hold each liable for part of the P damages
-shared liabilty is determined on proportion share of fault |
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cause in fact: Loss of chance
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held liable for proportion that chance is produced
(check book) |