Negligence: is conduct that falls below the standard of care established by law for the protection of others against

the unreasonable risk of harm I. Elements of a Cause of Action: a. To recover for negligence, the P must establish each of the following elements by a preponderance of the evidence, which is more than 50 percent. 1. A duty to use reasonable care a. requires actor to conform to a certain standard of conduct for the protection of others against unreasonable risks b. act as a reasonably prudent person would in same situation 2. Breach of duty--failure to conform to the required standard a. Requires both 1 and 2 for negligence b. Failure to maintain standard of care c. D breached duty by engaging in unreasonably risky conduct 3. Causation: A reasonably close causal connection between the conduct and the resulting injury a. Involves combination of 2 elements: 1. Causation in fact: P’s injury caused by D’s conduct; if but for D’s conduct, P’s would not have suffered injury. 2. Legal or proximate: P must show D’s conduct was reasonably significant cause of P’s injury. 4. Actual loss or damage resulting to the interests of another a. If D's risk-creating conduct threatens but does not harm he may be able to plead nuisance instead of negligence Contributory Negligence a. Conduct on the part of the P which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the D in bringing about harm to the P (affirmative defense). b. Majority: affirmative defense that D must raise to prove c. Minority: P must prove she is free from it


III. Formula for Negligence a. Conduct that falls below standard of care established by law for the protection of others against unreasonable risk of harm b. Question to ask: under what circumstances will actor be held liable for the injury caused by the actor’s conduct? IV. Application a. Timing i. Can’t judge negligence by resulting injuries; must look to time of incident and show that an unreasonable risk of harm b. Foreseeability i. Do not judge on something that is likely to happen but something that could happen ii. Doesn’t matter how remote the possibility, especially as chance of injury increases iii. Given nature of conduct and potential harm, an individual degree of foreseeability changes c. Determination i. Character and location of the premises

P is the probability that harm will occur from the D's conduct iv. have conducted himself as the D did? b. . The D who reasonably believes himself to be in good health. still held to reasonable adult standard b. or of poorer judgment then ordinary reasonable person 4. Relations such precautions bear to the beneficial use of the premises Learned Hand Balancing Test i. in the position of the D. 7. a heart attack or epileptic seizure while driving. reasonable person std. even in cases of sudden insanity. in other words D is not absolved of negligence merely b/c he’s more stupid. look to the reasonable person to see if they would make the same mistake V. careless. hot tempered. Physical Disability: if person has physical disability. that it must be considered imbecilic or moronic. Majority: no allowances for the mentally ill D. ii. Sudden Disability a. Imbecility: a. Majority: a mental state so low. L is the gravity of the potential injury. Mental Capacity: ordinary reasonable person not deemed to have same mental capacity as the D. and who suddenly suffers. 6. Insanity: a. a. would be that of what a person with that physical disability would have done 3. and which prevents the actor from even understanding that danger exists. Objective standard: would a reasonable person of ordinary prudence. Minority: insanity exception: the D must have: i. and ii. there is an absence of notice or forewarning 5. Exception: the D who knows that he is subject to such attacks or seizures might well be negligent.d. b. Precautions necessary to prevent such injury v. will relieve the actor of negligence b. Not subjective test but reasonable man does bear some characteristics of D 2. however. B < L x P ii. Mistake: if an honest person made a mistake. would almost certainly not be held liable for negligence in the ensuing accident. Restatement And Min: The restatement does not adopt the majority rule that mental deficiency may neither relieve a person of negligence nor relieve a P of contributory negligence Custom and Usage a. If it is shown that the burden or probability of the burden is greater actor must provide means of a safe environment and minimize the unreasonableness Standard of Care Reasonable Person: a. for the first time ever. Probability of injury iv. a sudden and unexpected form of insanity. Purpose for which the premise are used iii. Burden which the D would have had to bear to avoid the risk iii.

Minority: as long as D is generally careful person. if under normal circumstances an act is done which might be considered negligent. but they do not treat this evidence as conclusive. the expert must testify . b. Custom and usage can be used b both parties 8.b. The same standard applies whether the issue is negligence or contributory negligence. it does not follow that a similar act. or profession must exercise the requisite degree of learning. age 2. the fact that the D did or did not follow the custom or usage may be sufficient to prevail. Majority: must still live up to standard of care of reasonable person acting in the emergency. Judge based on exercise of such degree of care and discretion we reasonably expect of a person the same age. One who engages in a business. If act is custom in industry but deemed unreasonable. Child Standard i. occupation. Emergency Situations a. Exception 1. or participation in an inherently dangerous activity. ii. Certain activities by their very nature require an unusual capacity to react in emergency situations. Expert Testimony a. in these cases D will be held to higher standard. Special Training a. when the activity of the child is inherently dangerous they will be held to an adult standard of care 2. if performed by a person acting in an emergency. iv. Caveat: even though custom or usage is not conclusive on the issue of neg. b. Professional i. Can have custom in usage (everyone acts some way) for negligence but need additional evidence to support their knowledge and negligence of information ii. c. 9. engaged in traditionally adult activities. training 5. as long as the emergency is not of his own making. is held liable. Standard is to act similar to child of like: 1. skill and ability of that calling with reasonable and ordinary care. in which he suddenly is faced with a patent danger with a moment left to adopt a means of extrication. Majority: the courts allow evidence as to custom or usage for the presence or absence of reasonable care. c. experience iii. i. intelligence 3. The court applies the adult standard of care when the D child is operating a powerful motorized vehicle. court will presume instinctive response in an emergency was non-negligent. you can still be held liable iii. it there is no rebuttal evidence. It is not enough for the expert to say that he would have handled the matter differently from the D. 1. maturity 4.

Duty to inform (disclosure requirement): full disclosure of all material risks incident to treatment and alternatives to said treatment 2. Emergency ii. etc. Risks are so obvious they should be known VII. (Physician cases) ii. Caveat: physician may not set up own school. c. b. and is liable for malpractice only if the professional acted w/o the requisite minimum skill and competence. That the hazard that occurred was one the legislature intended to prevent iii. the professional must be judged by reference to the beliefs of the school that the professional fellows. In patient’s best interest not to tell iii. not the entire profession.that the D's conduct departed from all courses of conduct accepted by some portion of the profession. When testifying. Exceptions i. Doctrine of Informed Consent 1. lawsuit. Inability to prove statute doesn’t prevent P from bringing a C/O/A for negligence. not merely b/c the operation. Results a. the judge must determine: i. Violation of Statute a. Specialists held to higher standard b/c they market themselves as a specialist--they are defined and know ledged and put themselves out as having a specialty VI. just makes burden harder . Causation: the patient would have chosen no treatment or a different course of treatment provided that the alternatives or material risks and have been made clear 3. Injury: risk must have materialized and resulted in an injury to the patient b. b. In order to determine whether the standard of the statute can be used to establish the standard of care in a negligence action. Professional will not be normally held to guarantee that a successful result will occur. The D may possess a right to show that there was an excuse for the violation of the statute. must be one set by definite principles and must be adopted by a respectable minority of profession iii. That the party seeking to prove the violation is a member of the class that the legislature intended to protect and ii. The courts have held that where there are conflicting schools of medical thought. b. Good results Not Guaranteed i. must state: i. What standard is for the profession ii. If you have a professional and you're trying to prove neg. was unsuccessful. Informed Consent a. you must demonstrate that the individual did not follow established standard of care and actions departed from standard of care. How the D breached the standard 2. Differing Schools i.

may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case. then that person is liable for the resulting injuries to those persons whom the statute was designed to protect d. Evidence for Dangerous Conditions i. such as a registered deed or a pending lawsuit i. can use violation as evidence of negligence but not to prove rule of negligence per se. just makes job easier b. . still up to jury to make final decision. burden of P to prove the dangerous condition existed and that D had constructive notice of this condition (showing they failed to inspect in certain period of time--demonstrates circumstantially that the D had been negligent if you can prove that it happened) e. Majority--if a person neglects to perform the specific duty (i. Evidence of Negligence VIII. that the condition had existed for such a period of time that the D. proves a fact without inference or presumption (also known as positive evidence) b. Direct Evidence: evidence based on personal knowledge or observation and that. notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of. Res Ipsa Loquitur: in some circumstances. That the D in control of situation had actual knowledge of the problem and failed to correct it or 2. breaches that duty) established by statute or municipal ordinance for the protection or benefit of others. only legislature has power to change common law into enforced statute f.e. the mere fact of an accident's occurrence raises an inference of negligence in order to establish a prima facie case of negligence d. Before there can be liability for injuries suffered in dangerous condition. That the D had constructive knowledge of the situation and failed to correct it a. if true. Rebuttable Presumption 1. Constructive Notice: no direct notice. Minority--statutory violation is never more than evidence of negligence which the jury may find is outweighed by other evidence of due care e. Ways to Prove Negligence a. it must be shown that: 1. Ex. Negligence Per Se ii. Administrative Regulation: does not carry the same weight as a legislature enacted statute. could have and should have known of it ii. someone told you about it.e. Circumstantial Evidence: evidence based on inference and not on personal knowledge or observation (also known as indirect evidence) c. Res Ipsa Loquitur: the thing speaks for itself a. if found it gets P past a directed verdict for D. the notice element of negligence dissolves. iii. Does not apply if the cause of harm is known. Case law in jurisdiction determines what effect unexcused violation of statute will have: i. Exception: When dangerous conditions are continuous or easily foreseeable.c. I. in the exercise of due care. IX.

Application typically presupposes that some part of the causal process is known. and unusual occurrence iv. Typically only used in medical malpractice cases ii. Fills in causation gap--says something happened but we don't know what caused it to happen. Hard to prove direct control of instrumentality w/multiple Ds and res ipsa iii. Instrumentality was in control of D (not necessarily exclusive control. but lacks evidence of its connection with the D's act or omission.c. Permissible inference of negligence ii. Lay person doesn’t always know of rare occurrence. Expert Testimony i. e. Shifting of burden of proof to the D f. but given past experience and common sense. Rebuttable presumption of negligence iii. Demonstrate action in and of itself would not have occurred but for the negligence of someone v. Action was rare. iii. d. Accident occurred ii. Minority: Once res ipsa applies the burden of persuasion is shifted to the D . Elements: i. Make out a prima facie case iv. without negligence this could not have happened. Case Law in jurisdiction determines effect of res ipsa loquitur i. Minority: once res ipsa applies. Exception: where a P receives unusual injuries while unconscious and in the course of medical treatment. the D is required to offer a rebuttable presumption of D's neg. i. just more likely than not) iii. all those D's who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. use expert to lay foundation and understand it is rare h. Doesn’t it dispel notion of res ipsa if expert is required? No! ii. a few courts hold that the application of res ipsa has automatic effect: ii. Multiple Parties and Res Ipsa Loquitur: i. And the injury occurred g. Minority Applications i.

. of neg. The judge determines whether the statute applies interpreting legislative intent re: (a) category of (b) category of (c) determining whether appropriate. (b) causation. The case law in the juris. (a) instrumentality in exclusive control of defendant and (b) accident does not ordinarily occur in the absence of negligence In medical malpractice cases. direct or circumstantial evid. and (c) damages. (b) if the violation caused the injury. person would have done by and to the jury in a case where the P has no reference to a statute. determines what effect the unexcused violation of a statute will have: (a) negligence per se (b)rebuttable presumption (c) evidence of negligence (c) shifting of the burden of proof to the defendant The jury must still determine: (a) if the statute was violated. determines the effect of res ipsa loquitur: (a) permissible inference of negligence (b) rebuttable presumption of negligence or The judge determines whether res ipsa loquitur applies to the circumstances of the case: . (a) neg.Negligence Per Se Res Ipsa Loquitur P is allowed to take a shortcut to prove what P is allowed to get past a directed verdict the reas. and (c) what the damages were. The jury still must determine whether there was: The case law in the juris. the P usually must have expert witness testimony to establish whether some injury would have occurred in the absence of neg.

that the doctrine applies. the P If the P fails to persuade the ct. that the statute applies.If the P fails to persuade the ct. the .

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