NEGLIGENCE CHECKLIST

Negligence exists when (1)actor had a duty to use reasonable care, (2)he
breached that duty, (3)there was a close causal connection b/w the conduct
and resulting injury, and (4)there was actual loss or dmg resulting to the
interest of another

DUTY:
-Foreseeability: from the perspective of the actor, what you should
have reasonably calculated/known right before the event occurred
-actual/constructive notice of a group/categories of harm posed
to a group of ppl
-actual notice: actual knowledge of the risk
-constructive: implied knowledge
-general notice: you should know (ex. driving safety
rules)
-specific notice: you actually knew the risk (ex.
-if notice/knowledge is readily available gives light as to
whether its hidden or available can help determine if the notice is actual
or implied
-dont have to envision specific details, just the categories
of harm, for foreseeability
-some things are remote/speculative, so not liable
(no duty to them)
-NO liability for risks not reasonably known**
-past action can inform foreseeability in the future; so matters if
its a first time occurrence or repeat
- adjust foreseeability based on certain factors: status,
relationship, mental/phys ability, expectation

-Relationship: ex. business like a RR has an obligation to make

facilities/premise safe for patrons
-expectation of customers to have safe premise b/c business in
complete control of itself

-Expectations Matter: customer/business; doctor/patient/;

client/attorney

-Minors: general rule: for kids- held to same standard as kids of similar
age, intelligence, and experience (notice)
-prob: variations in ages/experience, so hard to group kids
-exception: if the activity the child engages in is inherently
dangerous, held to standard of an adult
 -if there is a high risk of harm to society b/c of the activity,
then protecting public interest by holding kids to adult standard (pub
interest)
-society makes allowances for minors b/c they cant look out for
interests of public the same way as adult w/o disabilities can

-Public Interest: the need for compensation for not letting expenses
getting too far/extending liability too far
-goals: to provide compensation to injured party
**-deterring conduct, affect public change and
expectations, incentive to make things safer (negligence policy?)

-Professionals: held to a higher standard that an ordinary prudent

professional having the same training and experience would have used in
similar situation
-b/c have specific/superior knowledge and special skills
-if you hold yourself out as a professional, create an expectation
and as a result, a standard
-can raise the standard for yourself but CANNOT perform below
the base standard; if you raise it, youre held to it

-Attorney Malpractice: attorneys are not liable for mistakes of

law/errors of judgment if made in good faith and attorney uses reasonable
care and diligence that other attorneys similarly situated would use
-must show BUT/FOR attorneys negligence the client
would have been successful in asserting his claim

-Medical Malpractice: informed consent 1. did you perform

treatment negligently or below standard of care and 2. Inform of
risks/alternative methods
-even if performed/treated at standard of care, can still be
liable if didnt inform of all the risks
-patient suing must show: 1. Wouldnt have gone through
with this if I had known everything 2. If informed, he wouldnt have
consented (in some jurisdictions the diff b/w reasonable patient and
reasonable physician) hindsight suspicious of this argument 3. Reasonable
physician
-duty to inform of a material risk materiality linked to
something like economic gain; in Morrison, the doctor had an econ interest in
operating on patient, didnt disclose, patient would NOT have gone through
w/ surgery if had been aware

-Emergency means unforeseen, sudden, unexpected

-timing is VIP b/c dont have time to consider options to
exercise reasonable care
 -the law does not hold the person to the usual standard b/c
the person did not have time to deliberate
-not a complete defense, so could still be liable
-standard changes in emergency

- Mental Incompetence- generally held to same standard as adults

w/o mental disability b/c
-prevent fraud/ppl faking it floodgates idea
-incentive for caregivers to be more diligent
-protect the harmed/injured parties
-already liable for intentional torts, so not too far of a leap
-when 2 innocent parties involved, loss falls on party who caused
harm
-provide compensation to harmed party
-disabilities b/w mental and physical disabilities were not
suspicious of physical; mental disabilities are harder to prove why mental
are held to standard of adult w/o disability

*exception: if mental illness was not foreseeable, then not

negligent; the reasonable standard will be altered

-Handicapped/Physical Limitations- held to reasonable standard as

someone under the same circumstances
-society makes allowances for minors and disabled ppl b/c they
cant look out for interests of public the same way as adult w/o disabilities
can
-disabilities b/w mental and physical disabilities were not
suspicious of physical; mental disabilities are harder to prove why mental
are held to standard of adult w/o disability
-not a complete defense
-policy: can only hold ppl accountable had they been reasonably
able to avoid the harm

-Avoidance: if you had acted in this manner, you could have avoided
this injury/harm
-if there was no way to avoid the harm, then youre NOT
negligent**
-Control: are they charged w/ controlling the situation
-3rd party actions: intervening, can affect ability to control
-statute: D (cab driver) left keys in ignition, violation of
statute, car was stolen and harm to public occurred, D liable
-what safety measures, if any, did you adopt?
-ties w/ notice and foreseeability
-did you take precautions to avoid the risk?
 -Cost/Benefit (econ policy question): Burden to avoid harm
weighed against the probability of harm occurring and extent of injury
-If your burden is less than the probability and severity of harm,
then breach of duty (Carroll Towing)
-prob: difficult to quantify

-*Standard of Reasonable Care: that of a reasonable man of

ordinary prudence under similar circumstances
-common usage: drivers are required to know the condition of
the vehicle that may become dangerous when the condition could be found
through a reasonable inspection (notice Q also)
-statutes: legislative stmt of pub interest
-scope: what class of ppl are we protecting
-purpose: what conduct are we concerned about
-therefore, you violated the statute and there is a
causal connection b/w the violation and resulting harm
-compensation: 2 tracks
-express: positive law (written down); what does
statute say on its face?
-implied: intent, though it did not denominate
personal injury can imply it by its purpose; what is the essence?
-defendant: that was not what the statute intended to
protect; could have made a civil statute but didnt
-legislative intent
-legislative history:
-prob: how to determine the scope/purpose when its
used in analogy; is the legislative intent/history clear? Usually unclear
-benefits-
-shortcut to establish duty
-limits jury discretion- they have a guideline
-limits judicial discretion
-problem: borrowing from criminal law and using by
analogy for civil; sometimes not appropriate (family code case)
-public interest: statutes designed to protect the pub
interest

-views on effects of statutes:

1. negligence per se: rigid rule; conclusive
presumption--- you show all these things, you win; pro-plaintiff; D is liable w/
no defense
2. Rebuttal of presumption: more liberal; modern
law; ball is in your court to show youre not liable
3. evidentiary only: more generous approach for D;
doesnt establish anything conclusively; statute itself is evidence the jury can
consider
 *if liberally construed; legislature tries to make it
apply as often as it can; when close call, statute takes full effect and wins

-Causation: if violation of the statute by the defendant was

the proximate cause of the plaintiffs inquiry, then the plaintiff may recover
upon proof of violation. If violation of the statute has no direct bearing on the
injury, proof of the violation becomes irrelevant
-ex. failure to obtain a chiropractic license (statute
violation) did not cause the injury
-Contributory Negligence: violation of a statute creates a
rebuttal presumption of negligence, which can be overcome by showing that
there was an adequate excuse or reason for such action under the
circumstances of the case
-can violate a statue if more dangerous to actually
comply with statute than not
-negligent conduct does not always equate to
contributory negligence
-negligence must be a cause of the accident

-industry practice/custom: when custom and practice have

removed certain dangers, the custom may be used as evidence that one has
failed to as a reasonable person would be required under the circumstances

PROOF:
-circumstantial/constructive/implied (Notice)- can prove
negligence
-ex. old, dirty banana peel indicates it had been there for a while,
had opp to clean it up but didnt, it wouldnt have been burdensome to
remove the banana peel
-cost/benefit analysis: courts dont expect to provide
absolute safety, but they can or should take out insurance to bear the
cost/absorb the loss

-Res Ipsa Loquitor(rare occurrence)- allows jury to infer negligence

when an action that normally occurs only when someone is negligent
happens and plaintiff is unable to prove negligence
-stems from a proof problem/proof gap
-something weird happens that is unexplained
-assumptions: impossibility of proof
-doesnt define duty or prove causations
-helps overcome a directed verdict
-practical impact
-usually in favor of P
1. was an accident; event actually occurred
 2. instrumentality that caused accident at the time of or prior
thereto of was under the exclusive control and management of D; eliminated
all other causes
-unless D can prove otherwise
3. accident was such that, in ordinary course of events, D using
ordinary care the accident would not have happened(negligence)
-problem is often accident v. negligence
4. P cannot prove negligence by D

probs: Multiple actors: cant tell who had the exclusivity of

control
-probability of negligence is multiplied/increased w/
number of ppl involved; when the actors negligence caused the injury, hold
them all accountable
-its up to defendants to show their negligence did not cause the injury

-expert testimony: concern confusing juries; unduly persuading

juries
-bringing in expert suggests its something that not
everyone knows
ex. Daubert test:
-themes: -relevance (dont want to provide
unnecessary info to jury that would confuse them)
-reliability (experts have special knowledge and
or experience that qualifies them; possible to have diff views that are all
reliable so diff views doesnt mean it will be unrealiable)
-but factor in determining reliability did
experts prepare info just for litigation
-helpfulness (help jury understand)
Daubert Test:
1. w/ respect to liability can it be tested or
challenged objectively?
2. subject to peer review and edit?
3. what is the error rate? Is there a known error rate?
4. to what extent did you apply standards and
controls when going through your particular study or methodology?
5. is that method of study/technique generally
accepted w/n the community

-courts act as gatekeepers: keep out evidence that is problematic

and confusing to jury

Duty/Reasonable Care example:

 -category of harm: potential harm of slipping and falling on a banana
peel
-group of ppl protected: patrons of the RR
-actual/implied knowledge notice yes b/c peel on floor and looked as
if had been there a while (old and dirty and brown)
-adjust foreseeability b/c RR has a relationship w/ patrons and
customers have expectation of safety

***can you do battery and negligence together? Intentional/negligence

together? Think the patient unconscious is it battery or negligence

CAUSATION:
-Should be more than a possibility
- prefer probability over possibility
-timing matters: the longer the time gap, the more likely you could say it was
caused by something else; makes it harder to prove
-typically burden on P, but in cases w/ multiple actors and unsure which
caused the harm, burden shifts to Ds to show their negligence didnt cause
the injury
-to give injured party redress & make sure responsible party held liable
-difficulty: market share liability ppl control diff amts of market, so
affects extent of liability?

2 types: -cause in fact: assumes you can connect the dots; an actual factual
inquiry
-can you borrow econ principles for cause in fact issue?
-Accountability
-Historical approach: -But/for analysis(fork) (but for your conduct this
harm wouldnt have occurred)
-prob: post hoc/propter hoc- just b/c something occurred prior
does not mean it caused the harm
- substantial factor (fork)- your actions were a substantial
factor in producing the harm
-we cant prove exactly who was responsible but you
were substantially involved
-use b/c but/for has limitations
-accountability principle

-prob areas: -multiple actors- difficulty of determining who caused the

harm
 -diminimus causation- you had a minor contribution/minor
role in the resulting harm, so you were in the causal chain but werent the
dominant actor, so should you be held liable
-3rd party actions- set something in motion, violated the
duty of care, but 3rd party intervened, is the causal connection broken? Not if
you could have contemplated or foreseen the 3rd party action

-proximate cause: policy question: idea that yes, you breached your
duty, but is there anything that should relieve you of liability (how far do we
extend liability?)

-have to show the causal connection and make distinction b/w

possibilities and probabilities

tort law does 2 things: -compensation to redress harm

-deterrence: by holding ppl accountable, encourages
deterrence b/c other ppl see party responsible held liable and deters the
same type of behavior/conduct