Negligence

Question 1

Duty Reasonable Prudent Person

Answer 1

whether or not the defendant failed to exercise the standard of care expected of a reasonably prudent person under the circumstances required for the protection of harm against others.

Question 2

Sub rule Duty 0: Constructive knowledge

Answer 2

Though D has no actual knowledge, instead of proving actual subjective knowledge, we’ll infer knowledge, where a party reasonably should have known the danger. (~= Hand formula gives driver a duty)
Ex. [Tire worn out to thread]

Question 3

Duty Reasonably Prudent child Sub rule 1: For minor

Answer 3

What would a reasonably prudent child of the same“age”,experience, intelligence, and education do, under the circumstances?
Exception: If the child is engaged in inherently dangerous activity, the child is held to an adult standard of care
Ex. [golf club in yard]:
Ex. [Teen snowmobile]:

Question 4

Duty RPP Sub rule 2: For time

Answer 4

What would a reasonable person (50years ago, as a watermain installer), would have done under the circumstances
Burden/cost of precautions necessary to prevent injury to P, must be evaluated as of time injury occurred. [Wooden Guardrail]

Question 5

Sub rule 3: Duty for driver / controller of dangerous mentality

Answer 5

1.A driver owes a duty of care to passengers and public to protect against foreseeable injuries due to operation or inattention of vehicle.
2.A driver owes a duty of reasonable external inspection of the vehicle.
3.Except latent defect, that RPP couldn’t identify
When D fails to act to protect another from a dangerous instrumentality within the exclusive control and possession of that primary defendant, they can be held liable for failure to act.
4.Once a defendant driver has notice dangerous situation could reoccur threatening harm to passenger or public(pedestrian), D has duty to exercise reasonable care to prevent such harm.
Ex. [Middle passenger grabbed wheel twice][CLASS 11 SLIDE 5]

Question 6

Sub rule RPP 4: Duty for less skilled/intelligent

Answer 6

What D subjectively/ honestly believed is not the standard. Objective Standard applies it will not be lowered. [Hay on fire] Same standard

Question 7

Sub rule 4.1: Duty for people with Superior Knowledge/Skill

Answer 7

We raise the bar for people with superior knowledge and skill that:
What would a reasonable prudent person with that superior knowledge would have done under the situation

Ex. If driving when seeing children playing on the road, the person has superior knowledge that this area will have.

Question 8

Sub rule 5: Duty created by evidence of Custom

Answer 8

Evidence of custom, industry practice, and/or usage may be used as evidence of what a reasonably prudent person would do under the circumstances.
But custom or usage is not conclusive, as a jury may still find RPP standard requires more or less than custom/usage.

Ex. [Shattering shower glass]:

Question 9

Duty Sub rule 6: Sudden emergency doctrine

Answer 9

Physical: The standard of care applicable to a person facing a sudden emergency (i.e., not of their own making / not reasonably foreseeable) is that of a RPP in the same or similar emergency

Mental: No advance warning, see above.
If advance warning, then this don’t apply. GO back listen.

Ex. [Carjack shakespeare]
Ex. [flying car batman delusion]

Question 10

Sub rule 8: Mental disability

Answer 10

Majority of jurisdictions do NOT modify RPP standard on “insanity” / mental health grounds

minority rule that evidence of advance warning or knowledge of “insanity” / mental health issue might lead a RPP to believe it might affect their driving is relevant and may present issue of fact for jury;

Question 11

N2. Duty for professionals

Answer 11

Standard of care is the reasonable skill and learning of an ordinary professional under the same or similar circumstances. Professionals are held to a minimum competence standard applicable to all such professionals, that profession in good standing. Exceptions include clergy and teachers.

Question 12

Duty Reasonably Prudent Professional Sub rule 1: Mistakes that are allowed.

Answer 12

If a professional’s mistake would have been made by a reasonably prudent professional under the circumstances, then they are not liable for malpractice. Lawyers use a statewide standard, instead of a national standard. Perfect judgment is not required. Attorneys do not commit malpractice for mere mistakes on points of law not settled by high courts, and/or where reasonable doubt exists among competent lawyers.

Question 13

Reasonably prudent Professional Sub rule 2: Expert testimony

Answer 13

1.Expert testimony is required to prove a professional departed from the applicable standard of care.
2. Proof of medical malpractice generally requires expert testimony, except if an ordinary layperson/juror could decide based on common knowledge (e.g., leaving something in a patient).

Question 14

Breach

Answer 14

Is when the defendant’s conduct foreseeably risks some type of harm to someone such that the conduct should have been avoided or precautions should have been taken. Common sense, balancing, custom, negligence per se, and res ipsa. For economic issues, the formula which provides that a breach occurs when The likelihood of resulting harm x severity of harm that may ensue > burden/cost of precautions necessary to prevent or reduce risk of injury.

Question 15

Breach

Answer 15

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in asserting whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Question 16

Risk resonable or unreasonable

Answer 16

Whether risk is reasonable or unreasonable, therefore = breach, depends on circumstances and the factors of the premise.

Question 17

Negligence Per Se

Answer 17

Negligence per se (NPS) is a doctrine that allows substitution of an actor’s violation of a statute, regulation, or ordinance (S/R/O) for the common law reasonably prudent person (RPP) standard for duty of care AND proof of breach where:
(1) the actor charged with NPS violates S/R/O;
(2) S/R/O was intended to protect against the type of injury / harm the victim suffered;
(3) victim is a member of the class of persons S/R/O was intended to protect; AND
(4) actor charged with NPS has no legally recognized “excuse” for S/R/O’s violation.

Question 18

Effect if NPS is Met:

Answer 18

S/R/O’s standard substituted for RPP duty standard and S/R/O’s violation satisfies element of breach. But the party invoking NPS still MUST prove S/R/O’s violation was factual and proximate cause of victim’s injury.

Ex: Osborne (causation met where D pharmacy violated Minnesota poison-labeling statute and P died drinking poison from D’s unlabeled bottle)

Question 19

Elements of NPS

Answer 19

1. VIOLATION
2. TYPE OF INJURY / HARM
3. CLASS OF PERSONS
4. LEGALLY RECOGNIZED “EXCUSE

Question 20

Violation

Answer 20

The act(s) or omission(s) of the actor charged with NPS violates provision(s) of an S/R/O;

Question 21

TYPE OF INJURY / HARM

Answer 21

The S/R/O provision(s) were intended to protect against the type of injury / harm / hazard the victim suffered as a result of the actor’s S/R/O violation;

Ex Ex: Osborne (Minnesota poison-labeling statute intended to protect pharmacy customers from injury or death upon drinking poison from unlabeled bottle, decedent P died upon drinking poison from no-label bottle sold by D)

Question 22

CLASS OF PERSONS

Answer 22

The injured victim is a member of the class of persons the S/R/O provision(s) were intended to protect; Statute serves general state or public interest but not preventing harms to private persons? Then element NOT met.

Question 23

LEGALLY RECOGNIZED “EXCUSE:

Answer 23

In a majority of jurisdictions, if the above elements are met, the actor charged with NPS may defeat NPS by proving evidence they meet a legally recognized “excuse.” If they fail, NPS applies. If they succeed, apply RPP standard.
Note: No Excuse for Absolute Duty: If S/R/O provision(s) establish absolute duty—i.e., text does not permit actor’s proffered excuse—then actor NOT permitted to claim “excuse” to NPS.

Question 24

LEGALLY RECONIZED EXCUSE

Answer 24

1. Disability / incapacity
2. Ignorance of need
3. Reasonable care / attempt to comply
4. Impracticability
5. Confusion / lack of fair notice to public:
6. Absurd / obsolete statute

Question 25

Disability / incapacity

Answer 25

Excuse if violation reasonable based on actor’s childhood, physical disability, or physical incapacitation

Question 26

Ignorance of need

Answer 26

Actor neither knew nor should have known of factual circumstances that rendered the statute applicable.

Question 27

Reasonable care / attempt to comply

Answer 27

Similarly, violation may be excused because actor exercised reasonable care in attempting to comply with S/R/O, though was unsuccessful.

Question 28

Impracticability

Answer 28

Excused if compliance w/S/R/O posed greater risk of physical harm to actor or others than non-compliance. Ex: Zeni (D driver sued by P nurse claims nurse was comparatively negligent and invokes NPS w/Michigan traffic law requiring pedestrians walk facing traffic, but P nurse rebuts NPS, because given snow and ice only alternative was icy sidewalk where P and other hospital EEs had previously slipped / been injured)

Question 29

Confusion / lack of fair notice to public:

Answer 29

Excused if the way the statutory standard presented does not provide adequate notice of what conduct is required (e.g., no-right-turn-on-read sign is turned upside down so appears to mean no-left-turn).

Question 30

Absurd / obsolete statute

Answer 30

Rare, mostly applicable to very old statutes on the books but no longer in use.

Question 31

“Appropriateness” Test for NPS Involving Criminal Failure-to-Act Offenses:

Answer 31

Where NPS is invoked w/respect to CRIMINAL felony or misdemeanor S/R/O for failure to act / protect / or report, courts weigh several factors to determine if S/R/O’s standard of care is “appropriate” standard for tort liability

Question 32

Factors for NPS involving Crminal Failure- to-Act

Answer 32

1. S/R/O reflects pre-existing common law duty 2. Fair notice 3. Directness / proportionality

Question 33

S/R/O reflects pre-existing common law duty

Answer 33

At common law, no duty to act / protect / or report to prevent harm to P caused by third party (unless an exception covered in Class 23 is triggered

Question 34

Fair notice

Answer 34

Whether S/R/O standard is too vague to provide fair notice of what specific conduct would violate the S/R/O;

Question 35

Directness / proportionality

Answer 35

Whether use of NPS to import S/R/O standard for use in civil liability would create immense liability for broad class of persons disproportionate to directness of their acts in relation to committed harm.

Question 36

N5. Slip-Fall-cases

Answer 36

A slip-and-fall P has burden to prove: a. D had actual or constructive knowledge of the dangerous condition on its premises; b. that condition posed an unreasonable risk of harm; in the first place. c. D did not exercise reasonable care to reduce or eliminate the risk; AND d. D’s failure to use such care proximately caused P’s injuries.

Question 37

RES IPSA (TheThing Speaks For Itself)

Answer 37

This means that the mere fact of the accident occurring is evidence of negligence sufficient to survive a pretrial motions, and allows the case to reach the jury.

Question 38

Res Ipsa Loquitur applies where:(TheThing Speaks For Itself)

Answer 38

1. There is no direct evidence or insufficient circumstantial evidence of the defendant’s conduct. 2. The plaintiff shows that the instrumentality causing the injury was in the defendant’s exclusive control. “Exclusive control” means that it is more likely than not that the defendant’s negligence, rather than the plaintiff’s or a third party’s conduct, caused the plaintiff’s injury (as defined in Cruz). 3. The type of accident that injured the plaintiff would not ordinarily occur without negligence by the defendant.

Question 39

Purpose and Effect of RIL:

Answer 39

1. If the doctrine applies, it allows the plaintiff to survive the defendant’s motion for summary judgment before trial or a motion for directed verdict at the close of the plaintiff’s case-in-chief. 2. Like the issue of duty or negligence per se (NPS), it is the judge’s role to decide if RIL applies. 3. If the judge finds RIL applies, it raises a permissible inference that the defendant’s negligence caused the plaintiff’s injuries. The jury may accept or reject this inference

Question 40

Exam Tip on Defendant’s Motion for Directed Verdict:

Answer 40

1. If the plaintiff meets the requirements for RIL or NPS, the court should deny the defendant’s motion for directed verdict. 2. If the plaintiff does not establish RIL or NPS and presents insufficient direct or circumstantial evidence of the defendant’s breach, the court should grant the defendant’s motion.

Question 41

FACTUAL CAUSE/CAUSE IN FACT/ BUT FOR TEST

Answer 41

Factual causation requires the injury to P would not have happened in absence of D’s negligent conduct (i.e., the act(s) or omission(s) that constituted breach of the applicable legal duty). EX Here, D railroad’s negligent conduct (12 mph over self-adopted speed limit) was NOT factual cause of the collision with P, because even had the train proceeded at 25 mph it would’ve collided.

Question 42

Cause And Effect (factual Cause

Answer 42

Where D’s negligent conduct increases likelihood of harm, the fact that it might have happened even in the absence of negligent conduct is not enough to break the cause-and-effect sequence;

Question 43

Sub-Rule 2 Mere possibility/ Speculation is not enough

Answer 43

1.To avoid MSJ in favor of D, P must at least provide information sufficient that a reasonable jury could infer the allegedly dangerous condition caused the accident; 2. mere possibility or speculation is not enough.

Question 44

Factual causation requires

Answer 44

more than that P prove the negligent conduct might have caused their injury;P must prove the negligent conduct more likely than not (i.e., > 50%) caused the harm;Here, expert testimony established mere possibility the cut increased the probability of cancer, not that the cut more likely than not caused the cancer.

Question 45

“limited loss-of-chance” doctrine

Answer 45

.Adopting majority rule of “limited loss-of-chance” doctrine, where P’s chance of survival at the time of the delayed care or misdiagnosis, P may recover in proportion to % loss in chance of recovery (injury) resulting from delayed diagnosis (negligent conduct To recover for lost chance P must prove, among other things, it is more likely than not (i.e., > 50%) D’s negligent care resulted in the reduction (loss) in 33% chance of recovery; If P proves 33% lost chance, P recovers 33% in damages.