Duty
What is negligence? (Definition)
Failure to use reasonable care under the circumstances which breaches the duty to prevent risk to others which causes harm that results in damages.
What are the three possible effects of the res ipsa loquitur rule? Which is the majority approach?
Creates inference of negligence (MAJORITY RULE/Restatement Rule). up to jury whether to draw that inference
Creates rebuttable presumption of negligence and shifts burden of production. The plaintiff has to come up with defense or he loses
Creates rebuttable presumption of negligence and shifts the burden of proof. Defendant has to prove he was not negligent
The element of Causation is two pronged, what are the two prongs?
Causation in fact & proximate cause
What is Loss of Consortium? Who can recover for Loss of Consortium? What damages can be recovered for loss of consortium?
Loss of Consortium: The loss of benefits that plaintiff would have expected to receive from injured party.
Who can recover for the Loss of Consortium:
-Spouses (all jurisdictions)
-Children (several but minority of jurisdictions)
-Parents (minority of jurisdictions)
What damages can be recovered for loss of consortium: Economic & non economic losses
Cain, a two-year old child suffering from a bacterial infection, received a routine childhood vaccination with a vaccine manufactures by Vasco. Shortly after receiving the vaccine, Cain spiked a very high fever, went into respiratory arrest, and died.
Cain's estate provides competent evidence that Cain had not had an infection or if Cain had not been vaccinated, death would not have ensued.
Has Cain's estate showed a but-for cause of Cain's death?
Cain's estates has satisfied its burden production to show that the vaccine was a factual cause of Cain's death.
Page 123; Illustration 4
What are the seven special relationships?
1. Common carrier & it's passengers
2. School & its students
3. Innkeepers & its guest
4. Employer & its employees
5. A business or possessor of land that holds its land open to the public with those lawfully on the land
6. Therapist & its patients
7. Landlord & its tenants
8. A custodian with those in custody
How does negligence per se affect the children's standard of care?
You would still apply child standard of care → negligence per se would just be evidence
What is the majority and minority test for Cause in fact. Explain each.
But-for Cause (Majority): Would the plaintiff's harm have occurred without defendant’s breach of duty?
Substantial Factors/Multiple Sufficient Causes Test (Minority):If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in absence of the other acts, each act is regarded as a factual cause of the harm.
What are the two types of compensatory damages and what do they normally include?
Special Damages: Pecuniary or out of pocket losses. Such as medical expenses; loss wages
General Damages: Intangible. Such as pain & suffering
Jennifer was driving her automobile, manufactured by Benessere Motor Co, on an Interstate highway when the voltage regulator in the car failed due to negligent installation. The failure caused the battery fluid to boil, which produced toxic fumes that reached the interior of the car. Jennifer suffered chronic vocal-cord dysfunction as a result. Jennifer was a popular vocal performer who earned several million dollars each year. Where Jennifer's lost earnings due to her vocal-cord injury within Benessere Motor Co's scope of liability for its negligence as a matter of law?
Yes.
Restatement page 157 Illustration 3
What are the common law categories for premise liability? What duty is owed under each category?
Trespasser: Lacks permission or privilege to be on the land.
Duty: To avoid intentional harm & reckless disregard
Invitee: Present with permission For business purposes of occupier OR Because property open to public
Duty: Reasonable care under the circumstances
Licensee: On premises with permission but conveying no tangible benefit
Duty: Duty to warn against known but hidden dangers.
How is custom treated in ordinary negligence cases? Medical Malpractice cases?
Ordinary negligence cases: Custom is a factor to consider, but not dispositive. Custom IS NOT the standard of care, however it is evidence of that standard.
Medical malpractice cases: Dr. must exercise the degree of skill, knowledge, and care exercised by other members of their profession
What are the elements of Alternative Liability? (There are 5)
Two identically negligent defendants
1 definitely caused the harm
Only possible parties are before the court
Only 1 caused the harm
Impossible to prove which one.
What is the difference between wrongful death suits and survival actions? Who brings the suit in each of these actions?
Wrongful Death: Able to recover damages suffered by SURVIVORS from death of LOVED ONES. Brought by “close relatives” usually spouse, children, parents
Survival Action: Damages suffered by person who died. Brought by administrator/executor
Carl is a guest in the Finney Hotel. The bathroom in the hotel includes a shower, protected by a sliding door made of ordinary glass. Carl trips while taking a shower and falls on the door. Its glass shatters and lacerates Carl.
It is standard practice among hotels to use shatter-proof tempered safety class rather than ordinary glass at hazardous locations ,such as shower enclosures.
Is Finney's departure from this custom evidence of negligence?
Yes.
What are the approaches to the reasonable person standard as it relates to religious beliefs?
Held to the same standard as
Reasonable members of faith
Reasonable person but may consider that the person is a believer
Reasonable person
What are the elements of the Hand Formula?
B<PL
B=Burden of adequate precautions
P= Probability of harm
L=Gravity of harm
What is proximate cause and what are the two elements of proximate cause?
Proximate Cause: When the defendant will be legally responsible for harm that his negligence caused in fact because the casual connection is sufficiently close or proximate
Must have direct cause and foreseeability.
Does state or federal law usually govern punitive damages?
State law usually governs, but may run into 14th Amendment issues
While eating lunch alone at the Walkalong restaurant, Joe suddenly suffers a severe asthma attack. Several waiters at the restaurant recognize that Joe is suffering an asthma attack. All of the ignore Joe, and another 10 minutes pass before another patron observes Joe and summons medical care.
The delay results in Joe suffering more serious injury than if he had received medical attention promptly after the waiters observed his plight. Is the Walkalong restaurant subject to liability to Joe for his enhanced injury due to the delay in his receiving medical care?
Yes.
pg. 192 Illustration #1
What is the rule as it relates to voluntary undertakings?
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
The failure to exercise such care increases the risk of harm beyond that which existed without the undertaking
What is the difference between contributory negligence and avoidable consequences?
Contributory Negligence: Plaintiffs pre-accident failure causes the accident ( in whole or in part)
Avoidable Consequences: Plaintiff’s post accident behavior makes damages worse; plaintiff mails to mitigate damages.
Superseding Cause: A “superseding cause” is an “intervening force” that prevents an actor from being liable for harm, even when his negligence is a substantial factor in bringing it about
Guidepost:
If the plaintiff’s injury is truly beyond the type of harm to be expected from the defendant’s conduct, the plaintiff will virtually always go uncompensated.
Where a particular type of injury to the plaintiff is foreseeable, the defendant is liable for the injury sustained, even though it is more serious than might have been anticipated.
The cases distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner.
An injury does not have to be likely or probable in order to be foreseeable.
What are the three guidepost for punitive damages?
Reprehensibility
Disparity between compensatory damages and punitive damages
No bright line, single digit modifiers are best
Disparity between punitive and civil penalties
Meena owes a duty of reasonable care to Ahmed because he relied on Meena to attend to his pets. Meena is subject to liability for harm caused by her negligent failure to visit Ahmed's homes and attend to his pets.
Illustration 3 page 200