Negligence essay shell

A defendant (D) is liable for negligence when they __ __ the __ __ __ set by law to protect others from __ __of harm, and the elements of a prima facie case of negligence are that a plaintiff (P) has to prove __, __, __ __, __ __, and __. 

fall below, standard of care, unreasonable risk, prima facie, duty, breach, actual cause, proximate cause, damages

Duty is based on the __ that requires one to act __ under the __ or similar __

SOC, reasonably, same, circumstance

An RPP is a person exercising those __ of __, __, __, and __ which society __ of its members to __ themselves and others.

qualities, attention, knowledge, intelligence, judgement, requires, protect

Reasonable person in an __ not of his/her own __ standard

emergency, making

Reasonable person with a disability- held to standard of RP with the __ __

same disability

Child standard – duty of children exercise same care of children of the same: __, __, __, __, __, __

intelligence, training, experience, age, maturity

A mentally ill person held to a __ __ __ standard

reasonably prudent person

One __ __ owe a general duty to exercise reasonable care to a trespasser

does not

A licensee (social guest) is when one enters the premises for his __ __ and not for the purposes of the land owner, the owner must warn__licensee of any __ __ which are unknown to his guests

own purposes, warn, hidden dangers

One becomes an invitee when one enters the premises for the purposes of the __ __, typically for business, and the owner must use __ __ to keep the premises __ for invitees (inspect the premises for dangerous conditions and remove the condition to make the premises safe)

land owner, reasonable care, safe

If it’s a child trespasser might apply the __ __ doctrine; there are certain ages where the court understands a child does not have __ to understand the __ so cannot be held to understand what dangers lay ahead (children do NOT have to be lured/enticed into the property)

attractive nuisance, capacity, danger

Generally, D has no duty to rescue another. EXCEPTIONS:

1. D has a duty when D __ the __. This means the need for rescue arises due to D’s __.

2. D has a duty where there is a “__ __” between the parties.

   1. At common law was common carrier-passenger, innkeeper-guest & sea captain–seaman, law now recognizes employer-employee, school-student & business-customer

3. __ to act when there is no __ duty

   1. Traditional rule was once D undertakes a rescue, D must not leave the victim in a worse position

   2. Modern rule is D must act reasonably once D begins to act on behalf of another

   3. Where D’s unfinished rescue efforts dissuade others from helping or prevents others from seeking helping, D has breached a duty to the person in peril

4. A duty may arise by __ (lifeguard and babysitter situations)

creates, peril, negligence, special relationship, Undertaking, initial, contract

Government liability - Under __ __ doctrine, government actor may not be liable for failing to properly perform because the duty is said to be to the __ __ __, not to a specific individual

public trust, public at large

Police Duty - Generally, police departments are not liable for failing to protect individual citizens

• The reason is that a government actor owes a duty to the public generally rather than to a __ __.

• Supported by __ analysis (courts recognize that amount of protection to be provided is tempered by resources in each community + the executive and legislative branches’ judgment as to how the resources are to be used)

specific individual, cost-benefit

Breach is falling below the __ __ __ __.

reasonable standard of care

Breach can be measured by the formula (B<PL) that Justice Learned Hand created which measures the __ of protecting against a __ versus the __ of harm and the severity of __

burden, harm, risk, severity, injury

Other theories of breach could use:

1. Intrinsic dangerousness/damaging, (eg. golf club)

2. Failure to do or doing something a reasonable person would or would not do- RPP acts within the __ __ and is not liable for occurrences outside of them

3. __- ability to reasonably anticipate the consequences of one’s actions

4. __- (Measure with the circumstances) (from Krayenbuhl/turntable case)

   1. character/location of the premises,

   2. purpose

   3. the probability of injury

   4. the precautions necessary to prevent,

   5. the relations such precautions bear to the beneficial use of the premises

5. __ analysis (Common Law)

   1. If the benefit outweighs the cost, then breach

   2. If cost outweighs the benefit, no breach

6. Breach of medical SOC must be established through qualified expert testimony

dangerousness, average circumstances, Foreseeability, Risk/utility, Cost-benefit

If there is a relevant __, negligence per se is a shortcut to duty and breach.

To establish negligence per se, the plaintiff must be

1. in the __ of people the statute was meant to __,

2. have __ the type of harm the statute was intended to __, and

3. it must be __.

If they satisfy these elements, there is negligence per se. If not, then fall back on common law duty and breach analysis.

statute, class, protect, suffered, prevent, fair

Evidence can either be __, __, or __ __.

1. Here, there was direct evidence, which is determined by the senses like what one saw, heard, or recorded, as __

2. OR Here there was circumstantial evidence, which is proven facts from which negligence may reasonably be inferred, as

3. OR Here there was res ipsa, meaning “the things speaks for itself” and there is direct or circumstantial evidence for the negligence

direct, circumstantial, res ipsa,

Direct evidence is determined by the __ like what one __, __, or __

senses, saw, heard, recorded

Circumstantial evidence, which is __ __ from which negligence may __ __ __

proven facts, reasonably be inferred

res ipsa means “the things __ __ __” and there is direct or circumstantial evidence for the __

speaks for itself, negligence

The actual cause is the “__ __ __” or “without which the thing __ __.”

sine qua non, cannot be

“But for" cause means __ it not for the D’s actions the harm would __ __ __

were, not have occurred

substantial factor means it was a __ __ __

materially contributing cause

2 but-for’s from make a __ __ __

dependent concurrent cause

2 substantial factors make an __ __ __

independent concurrent cause

Alternative liability theory: Where __ __ acted negligently, but only one cause the plaintiff's __, the burden of proof shifts to __ __ to prove he wasn't negligent. If defendants can't make that showing, both are liable

both defendants, negligently, injury, each defendant

Proximate cause is a cause which sets off a __ __ of __, unbroken by any __ cause, and which is a __ __ in producing the __ __.

foreseeable, sequence, consequences, unbroken, superseding, substantial factor, particular injury

There are three types of __, __, __, and __. Here, it is compensatory damages as nominal damages don’t apply negligence, and the plaintiff can recover for special damages for personal injury such as medical expenses, lost wages, and pain and suffering.

damages, nominal, compensatory, punitive