Qué es?
What is negligence?
when an actor’s conduct falls outside the standard duty of care owed to a person and that person is harmed because of it
What is a reasonably prudent person?
when a reasonably prudent person engages in an activity it is presumed that they will take precautions against creating unreasonable risks of injury to other persons
How does a def breach their duty?
where the def’s conduct falls short of that level required by the applicable standard of care owed to the pltf, she has breached her duty
What are the three types of causation?
actual or factual causation, proximate cause and cause in fact
What is the concept of contributory negligence?
In theses types of jurisdictions, even if the pltf is found to be only 1% at fault, they may not recover anything
What are the elements of negligence?
Duty, breach, causation and damages
To who is a duty of care owed?
only to foreseeable plaintiffs
What is a joint tortfeasor?
What are the two tests for actual (factual) cause?
the but for test: the accident would not have happened but for the def’s conduct
the substantial factor test: the def’s conduct was a substantial factor in causing the pltf’s harm
What is the concept of comparative negligence?
here, however much % the pltf is found to be at fault, their reward is reduced by that much
What is the difference between active and passive negligence?
active: is when you are the primary actor
passive: when you fail to discover or detect something unsafe or when you fail to make something safe
What is the standard of care owed by professionals?
they are required to possess and exercise the knowledge and skill of a member of the same profession or occupation in good standing and they have the duty to disclose risks of treatment to patients
What are the two types of assumption of risk?
expressed: an express agreement like exculpatory clauses in a contract, intended to sulfate one of the parties from liability resulting from his own negligence, are closely scrutinized but are generally enforceable
implied:(1) pltf must have known of the risk and such knowledge would have been clear to the average person (2) voluntary assumption of risk
What is proximate cause?
the pltf was foreseeable victim of the def‘s conduct
What is assumption of the risk?
this can be expressed or implied and the pltf cannot recover from any harm caused during the conduct because they must have known of the risk and voluntarily assumed it
What degree of care is required by common carriers and innkeepers?
a very high degree of care toward passengers and guests, they are also liable for slight negligence
what is the standard of care owed by a child and its exception?
they are held to the same standard of care as another child of the same age, intelligence and experience except when they participate in adult activities; then he is held to the same standard as an adult in that activity
What are the exceptions to assumption of risk?
(1) common carriers and public utilities are not permitted to limit their liability for person injury by a disclaimer and (2) when a statute is enacted to protect a class, members of that class cannot assume any risk within the statute
What two types of damages are recoverable in a negligence action?
economic damages (for medical expenses and lost earnings) and noneconomic damages (such as pain and suffering)
What are the two types of assumption of the risk (AOR)?
primary AOR: you are voluntarily participating in a dangerous activity that requires a high level of skill that includes an inherent risk
secondary AOR: you know someone is being negligent and decide to continue to engage with some type of activity with knowledge
What is res ipsa loquitur?
the accident would not have happened if it were not for the def’s negligence
(1) inference of negligence (basically the definition)
(2) exclusive control: the instrumentality that contributed to the harm was in exclusive control of the def
(3) the plaintiff’s actions: the accident must not be due to any voluntary action on the part of the plaintiff
What is NIED and its requirements?
a def causes a negligent infliction of emotional distress when they breach their duty and create a foreseeable risk of physical injury to the pltf
two requirements (1) pltf must be within the zone of danger and (2) pltf must suffer physical symptoms from the distress
What is negligence per se?
when a def violates a statute
this means that pltf will have established a conclusive presumption of duty and breach of duty
bear in mind, even when a def complies with a statute it does not completely excuse their negligence
What is the doctrine of the last clear chance?
or the humanitarian doctrine permits a plaintiff to recover despite his own contributory negligence
under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence
What is joint and several liability?
joint liability is when the actual cause of the harm is not known, the liability shifts to all possible tortfeasors equally
several liability is when there are multiple people liable and everyone receives the appropriate percent of liability