I.
II.
Negligence A. Elements 1. Duty – to use reasonable care; average reasonable person of ordinary prudence in same or similar circumstances 2. Breach – failure to conform to standard of care required 3. Factual Cause – but for your act the person would not have been injured 4. Proximate Cause – legal causation; something freaky happens with a tenuous connection that may involve an intervening act 5. Damages – must show you actually suffered damages (actual/nominal) Duty and Breach (Four Ways to prove) A. The Average Reasonable Person (under same or similar Circumstances) 1. Takes on Physical Characteristics (Blind, deaf, etc.) of Δ but NOT intellectual abilities A. Majority – no allowance for mental illness B. Minority – liability may be precluded if 1) the mental illness affects the person’s ability to understand and appreciate the duty which rests upon them to act with ordinary care AND 2) there is an absence of notice or forewarning; it’s sudden 2. Children held to level of average reasonable child of same age, intelligence, maturity, training and experience EXCEPT when engaging in inherently dangerous activity; if they do so, they are treated as an adult 3. if Δ is drunk still held to reasonable person level of care 4. Industry standard may or may not be the gauge; it must be reasonable not just what is normally done 5. In emergency situation, look at the reasonable person acting in an emergency A. If you cause the emergency yourself, you have breached a duty of care 6. If a professional or expert, held to a higher level of knowledge A. Legal Malpractice i. Attorneys must exhibit: 1. ordinary skill 2. best judgment (incorporates higher knowledge standard) 3. reasonable care and diligence a. π would have to show they would have won the underlying case B. Medical Malpractice
i. Doctor’s Duties 1. must use ordinary skill/judgment— based on proper locality rule (strict, modified, national) 2. Must Disclose to Patients (π has burden to prove these): a. Adequate information about the treatment b. Options/alternatives c. Material Risks (likely to affect decision) d. Conflict of Interest/Personal Interest (Research/Economic) e. Except Where (Doctor has burden to prove these): i. Common knowledge ii. Already known to π or should be iii. Emergency iv. Detrimental to π care to disclose ii. Patient must Show 1. Dr. breached a duty—using expert medical testimony unless obvious a. Must have done it differently b. Way that it was done was unreasonable 2. Failed to inform and but for this breach of duty a reasonable person would not have chosen treatment a. Maj – reasonable person would not have undergone it b. Min – this patient would not have undergone operation 3. Injury 6. Breach by Average Reasonable Person Standard a. B < PL i. B = Burden of conforming your behavior so the accident doesn’t happen ii. P = Probability of harm to anyone iii. L = Gravity of the harm that is risked b. R > U (Restatement View) i. R = Risk ii. U = Utility B. Rule of Law (automatic, before act determination; Court made)
C. Negligence Per Se (statutorily made; must hold people to this standard) 1. Elements a. Statute (π has burden of showing statute violation) b. Violation c. Π part of protected class of persons d. Π suffered type of harm the statute was enacted to prevent 2. Effect of Proving Negligence Per Se: Is there an Excuse a. Majority – Judge decides on excuse b. Minority – Jury decides on excuse (Rebuttable Presumption) c. Minority 2 – Evidence of negligence necessary 3. How to present the Excuse a. Δ can showhe was reasonably unaware of the § b. Δ can show he made a reasonable attempt to conform his behavior to the § c. Δ can show that compliance with the § would have caused greater harm d. Δ can claim that he had to violate the statute due to emergency D. Res Ipsa Loquitor 1. Elements a. Accident does not ordinarily occur absent negligence b. Instrumentality of injury within the exclusive control of Δ i. Except where a group of people are acting together in consert c. Other causes sufficiently eliminated 2. 3 approaches depending on Jurisdiction a. Inference of Negligence (π has burden of produciton) b. Presumption of Negligence (Δ has burden of production) c. Presumption of Negligence and burden of proof shifts to Δ (Δ has
burden of production and persuasion) III. Causation A. Factual Cause 1. π has the burden of proof to show that but for Δ’s act no injury would have been sustained 2. if the act would have occurred anyway, no but for causation 3. if concurring events cause P’s injury, but for causation can still be proved if either of Δ’s acts would have caused the injury 4. when there are 2 or more Δ’s at fault: A. the burden shifts to the Δ to show that the other one caused the harm 5. Market Share Theory A. If π shows that a number of Δ’s negligently manufactured /distributed a product into the stream of commerce, but cannot show who’s share of product injured the π, Δ’s will be liable for the percentage of their product in the market share (burden shifts to the Δ here) B. Proximate Cause 1. Approaches A. Andrews i. You owe a duty of care to everyone in the world ii. Take into account 1. foreseeability 2. directness 3. remoteness 4. public policy 5. common sense 6. fair judgment iii. Also Consider 1. was it a natural and continuous sequence 2. is the cause direct (but for) 3. is it a substantial factor 4. in retrospect, was the injury foreseeable B. Cardozo i. At the time of breach of duty, is the π who is injured within the scope of danger? ii. If there is no foreseeable π, then there is no breach and no proximate cause because there is no duty of care owed to that person C. Foreseeability
i. Extent 1. was the extent of harm foreseeable? 2. Even if not foreseeable, doesn’t matter, still liable ii. Type 1. Was the type of harm foreseeable? iii. Manner 1. was the manner in which the injury occurred foreseeable? 2. Majority – doesn’t matter if it was not foreseeable, still liable iv. Π 1. was the π outside the scope of foreseeability? 2. similar to type D. Direct (Polemis Case—no longer has support) i. If you breach a duty of care and factually cause harm that is the direct result (no intervening act) then you are liable. ii. Foreseeability irrelevant iii. Type of harm irrelevent E. Restatement 3rd i. Was the type of harm that occurred reasonably foreseeable regardless of intervening act? ii. Similar to foreseeable type iii. B