Negligence - Breach, Causation Flashcards Preview

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Flashcards in Negligence - Breach, Causation Deck (35)
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1
Q

What is a Breach of Duty?

A

Where ▵’s conduct fails to conform to the applic. std. of care

  • Failure to act as a reasonable person
  • An unexcused violation of statute
  • Res Ipsa Loquitur (where no direct evidence)
2
Q

What is the traditional approach indetermining if a breach of duty occured?

A

By comparing the D’s conduct with what a reas. prudent pers. under the circ. would or would not have done (Objective std.)

3
Q

What is the modern trend in determining if there was a breach of the duty of care?

A

Cost-Benefit Analysis - the following factors are considered in determining if the D has acted in accordance with the std. of care:

  1. The foreseeable likelihood that the D’s conduct would cause harm
  2. The foreseeable severity of any resulting harm AND
  3. The D’s burden (costs or other disadvantages) in avoiding the harm
4
Q

What burden must a plaintiff satisfy in proving breach of duty?

A

Plaintiff must prove every element by the preponderance of the evidence

5
Q

What is the preponderance of the evidence standard?

A

More likely than not

  • Greater than 50%
6
Q

What 2 types of evidence can show a breach of duty?

A
  1. Direct Evidence - eyewitness or videotape of the accident
  2. Circumstantial Evidence - Ev. from which one can draw a reas. infeence
7
Q

Define Res Ipsa Loquitur

A

The thing speaks for itself

8
Q

When is res ipsa loquitor applicable ?

A

Arises when Plaintiff can’t identify exactly what the D did that was wrong (no direct evidence)

  • BUT the event could only occur through the Defendant’s negligence
9
Q

What are the Elements of Res Ipsa Loquitur?

A

Applies only where a lay jury could say that the accident would not ordinarily occur in the absence of the ▵’s negligence

  1. No Direct Evidence as to the ▵’s precise conduct
  2. Accident Normally Does Not Occur w/out Negligence by Someone in ▵’s position AND
  3. Instrument that inflicted the injury was w/in ▵’s Exclusive Control

▵ must be the most likely pers. whose. neg. would have caused the accident

10
Q

What is the result of the Doctrine of Res Ipsa Loquitour ?

A

∏ is treated as having produced enough ev. of the ▵’s neg. to get the case to the jury (no directed verdict for ▵)

  • ▵ can rebut this evidence
  • Jury is free to reject the res ipsa loquitur inference
11
Q

What is cause in Fact ?

A

Link b/w defendant’s breach of duty of care and plaintiff’s injury

12
Q

What is the default test to prove the element of cause in fact?

A

But For Test

  • But for the brach of duty by the D, the P wouldn’t have been injured
13
Q

What are the 3 areas where cause in fact is not evaluated through the but for test?

A
  1. Multiple Causes
  2. Loss of Chance
  3. Alternative Causes
14
Q

When there are multiple causes contributing to a Plaintiff’s injury, what test is used to prove the element of cause in fact?

A

Substantial Factor Test - D liable if their negligence was a subst. factor in the plaintiff’s injury

  • Where 2 concurrent causes,
  • each of which could have been sufficient by itself to cause the injury to ∏
  • So long as one of the causes was subst. factor in bringing about ∏’s injury, it is the cause in fact
15
Q

Substantial Factor Test - What if both causes are found to be substantial factors?

A

Both Causes found to be Substantial Factors = ▵s will be jointly liable

16
Q

Cause in Fact - Concert of Action

A

All Defendants will be jointly & severly liabile if:

  1. If 2 or more tortfeasors were acting pursuant to a common plan or design AND
  2. The acts of one or more of them tortiously caused the P’s harm
17
Q

When does loss of chance apply?

A

It must be integrated specifically by statute

  • Usually applies in med. malpractice cases
  • When P can’t meet preponderance of the ev. std. for causation (more likely than not)
    • b/c chance of recovery was already less then 50% b/f D’s negligent conduct
18
Q

When loss of chance applies, what are a plaintiff’s damages?

A

P can recover reduced damages

  • Measured by:
    • an amount equal to the total damages recoverable as a result of the death
    • multiplied by the difference in the percentage chance of recovery b/f neg. misdiagnosis & after the misdiagnosis

The loss of X% chance of survival if not but for defendant’s negligence

19
Q

When does the alternative liability theory apply to prove cause in fact?

A

Where there are multiple causes but neither are sufficient by tiself to cause P’s injury

  • Both causes are considered CIF
20
Q

What is the effect if alternative liability theory applies to prove cause in fact against the defendants at issue?

A

Burden shifts to the defendant to show that they were not the cause

  • If D can’t do so, then they will e jointly & severally liable
21
Q

What does proximate cause ask?

A

Is there a reason to limit the extent of liability due to?

  • Was harm to plaintiff foreseeable? OR
  • Was it brought about by some extraordinary or unforeseeable sequence of events ?
22
Q

Proximate Cause - What is the Majority Rule ?

A

D is liable for reasonably fores. consequences resulting from his conduct

  • Type of harm must be foreseeable
  • Extent of harm doesn’t need to be foreseeable
23
Q

Proximate Cause - Minority Rule

A

Prox. cause is found for all consequences that flow directly from the defendant’s conduct

  • Considers:
    • Number of intervening causes AND
    • Remoteness of the cause from the effect

Other courts find prox. cause if Ds conduct was direct cause of P’s injury regardless of foreseeability

24
Q

What is Defendant’s liability if the manner of the harm was unforeseeable?

A

If there was a superseding cause, then there is no liability for the defendant

25
Q

When is an intervening cause superseding?

A

When it is highly unforeseeable, freakish, bizarre and highly culpable

26
Q

Proximate Cause - Direct Cause

A

P can recover when D’s tortious acts are the direct cause of plaintiff’s harm withou the intervention of independent contributing acts

27
Q

Proximate Cause - What is an Indirect Cause

A

Indirect Cause

  • Results from an act or event occuring after D’s tortious act & b/f plaintiff’s injury (intervening event)
28
Q

What is a superseding cause?

A

An unforeseeable, intervening cause that breaks the chain of causation b/w the initial wrongful act & the ultimate injury

  • Relieves Defendant of any liability
29
Q

Proximate Cause - Negligent Intervening acts

A

Are foreseable

  • Don’t prevent original D from being held liable to the P
30
Q

Proximate Cause - Unforeseeable Intervening Causes

A

Is a superseding cause

  • Breaks the chain of causation b/w D & P
  • Include unforeseeable acts of nature, criminal acts/intentional torts by 3d parties
31
Q

Proximate Cause - Extent of Damages

A

Thin Skull Rule

  • The extent of damages doesn’t need to be foreseeable
  • D liable for the full extent of the plaintiff’s injuries that may be increased b/c of P’s preexisting med. conditon or vulnerability
32
Q

Whether a defendant has breached his duty to the P is a question of fact to be determined by who?

A

Trier of Fact

33
Q

Can a resuer be a superseding cause?

A

No, because they are always foreseeable

34
Q

What is the effect of res ipsa loquitur

A

It gives an inference of negligence

35
Q

Will establishing res ipsa loquitur support a judgment for damages ?

A

No, the jury must still determine that the defendant was actually negligent