Negligence Rules/Elements

A negligence claim has the elements of

Duty, breach, cause (factual and proximate), and damages.  

The Ordinary Reasonable Prudent Person (ORPP)

who is not average and not perfect but is of normal intelligence.  

Sudden Emergency Doctrine

1. the party did not create the emergency through his own negligence

2. the danger was so imminent as to leave no time for deliberation and

3. the party’s perception of the danger was reasonable.  

Slip and Fall Rule

1. show that some negligent act of the defendant caused the injury; or

2. show the defendant had actual knowledge of a dangerous condition and failed to warn; or

3. show the dangerous condition existed long enough that the defendant should have known of it.  

Res Ispa Loquitur

1. the event is of a kind which ordinarily does not occur in the absence of negligence;

2. the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

3. the indicated negligence is within the scope of the defendant’s duty to the plaintiff. 

Standard Of Care

Is assessed in light of the circumstances presented

Foreseeability in Breach:

whether the defendant’s conduct foreseeably risks some type of harm to someone such that the conduct should have been avoided

Foreseeability in proximate cause:

Whether the defendant’s conduct foreseeably risked the type of harm that actually happened to the plaintiff.  

Foreseeable

Harm was not only something that could possibly occur but was too likely to occur to justify risking it without added precautions

Harm is unforeseeable

although harm is actually foreseeable, a reasonable person would not have taken action to prevent it because the risk was low and the harm so improbable that a reasonable person would not have taken precautions.  

Breach

Used to prove and evaluate a persons conduct

Res Ispa Loquitur is applied when

he plaintiff cannot specify the breach because the plaintiff does not know how the injury occurred, and there is at least an issue whether all the elements are met

Actual Harm

Actual physical harm is necessary for negligence

Factual Cause

The direct, physical link between a defendant's careless behavior and a plaintiff's injury.

The But-For Test

The question is whether the injury would have happened but for the defendant’s negligence — but for the defendant’s negligent act, the plaintiff’s injury would not have occurred.  

Causal apportionment:

Where two persons cause separate or divisible injuries, liability is apportioned by causation and each tortfeasor is liable for the harm that tortfeasor caused. 

Fault apportionment:

Where two persons cause a single indivisible injury, both tortfeasors’ conduct contributes to one injury, handled by several liability with possible contribution or proportionate-fault liability.  

Indivisible injury:

an injury that cannot be apportioned with reasonable certainty to individual wrongdoers

Joint and several liability:

The plaintiff can enforce the tort claim against either tortfeasor and obtain a judgment against both, but can collect only up to the full judgment and cannot collect twice.  

Several liability:

The plaintiff can enforce the claim against each defendant only for that defendant’s share, so if one defendant cannot pay, the plaintiff recovers only the other defendant’s share.  

Preemptive causation:

whoever got there first is the factual cause — the one who actually completed the wrongdoing — not the second actor, even if the second may have completed its attempt first.  

Proof

Liability for negligence attaches only when factual cause links the defendant’s negligence to the plaintiff’s injury

Alternative causation:

both defendants are negligent and only one produced the harm, but because both were negligent the fault basis for liability is present for each defendant even if actual cause is unclear. 

Scope of Liability (Proximate Cause)

the plaintiff must prove that the harm fell within the scope of the defendant’s liability, that the harm resulted from the risks that made the conduct negligent.