NEGLIGENCE

5 Elements

1) Duty
1.b) Duty as established by a statute – “Negligence Per Se”
2) Breach of Duty
3) Causation
3.a) Actual Causation
3.a.1) “But-For Test”
3.a.2) “Substantial Factor Test”
3.b) Proximate Causation
4) Damages

1) + 2) = Negligent ; Can only recover if there is 3) tho (causes injury)

1) Duty
 duty as the creation of an unreasonable risk of injury to others and the
standard of care under the circumstances that the law will require as
that duty.
 "An actor ordinarily has a duty to exercise reasonable care when the actor's conduct
creates a risk of physical harm." - Restatement § 7(a).
 How to see if someone has a duty
 Restatement 2nd approach: (Section 291)
 "Where an act is one which a reasonable man would
recognize as involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk is of such
magnitude as to outweigh what the law regards as the utility
[burden] of the act or of the particular manner in which it is done."
 How to determine magnitude of risk (Section 293)
 "In determining the magnitude of the risk for the purpose of determining
whether the actor is negligent, the following factors are important:
 (a) the social value which the law attaches to the interests which are
imperiled;
 (b) the extent of the chance that the actor's conduct will cause an
invasion of any interest of the other or of one of a class of which the
other is a member;
 (c) the extent of the harm likely to be caused to the interests imperiled;
 (d) the number of persons whose interests are likely to be invaded if the
risk takes effect in harm."
 How to determine utility (Section 292)
 "In determining what the law regards as the utility of the actor's conduct
for the purpose of determining whether the actor is negligent, the
following factors are important:
  (a) the social value which the law attaches to the interest which is to
be advanced or protected by the conduct;
 (b) the extent of the chance that this interest will be advanced or
protected by the particular course of conduct;
 (c) the extent of the chance that such interest can be adequately
advanced or protected by another and less dangerous course of
conduct."
 Learned Hand Approach
 B > P * L = no duty
 B < P * L = duty
 B = Burden of avoi
 P=
 L=
 Question of Law i.e. for the judge not jury
 “Legal obligation upon one for the benefit of the other”
 Watch out for MPQs on this topic. Any answer that has “the jury will decide” is
WRONG
 The test for negligence is act as a reasonable person of ordinary prudence under the
circumstances.
 what a reasonable person would do in the circumstances, not whether the individual
sincerely acted to the best of her ability.
 That would be a “subjective test” for an external and objective one
 Things that everyone has to know. Illustrations from the restatement
 Charging bull
 Electrical wire
 Driving on icy roads may cause you to skid
 Gas present may cause an explosion
 The reasonable person should expect carelessness of children
 lack of knowledge of English of recent immigrants
 The reasonable person should anticipate other persons driving negligently (like if
lend my keys to an incompetent driver/someone who can’t drive)
 or carelessly failing to see a hole in the sidewalk
 The reasonable person should even be aware that her act of negligence may create
an unreasonable risk of criminal actions of others such as stealing a watch or stealing
a car and having an accident. (like Thief may steal D's unlocked, running car and have
an accident, or Thief may steal watch from a person D knocks out)
 “CUSTOM”
 Custom is relevant evidence to be considered on negligence.
 Conformance to custom is not conclusive evidence against
negligence and does not prevent a punitive damages award
 “standard of care” different for following people
 children
 child’s own standard of care depending on age/intelligence/experience in similar
circumstances
 UNLESS child is engaging in adult activities like ‘driving’
 insane
 NO. Held to “reasonable standard”
  No exceptions for those who are insane of lower mental competence
 superior knowledge
 YES. Special skills or knowledge to be taken into account.
 Eg. Medical Malpractice
 Doctors have superior knowledge
 The law allows physicians to make reasonable, good faith mistakes of
judgment in treatment without labeling them negligence (or at least so the
jury is instructed). So too, a physician is allowed to follow one school of
thought on treatment, so long as the school is at least a respectable minority
in the profession. Dobbs § 21.1.
 The standard of care of other physicians in the local community was the
traditional standard. Most states now expand that to similar localities or the
state. A growing position is a nationwide standard, but that is still a minority
position, so it is not scored as correct. Dobbs § 21.7.
 The law does not excuse a poor result when the physician has contracted for
or warranted a cure. Neither would it tolerate today a medical treatment,
such as bleeding, abandoned after colonial times. The red herring is that
defendant physician consulted with others during treatment; that fact may
be relevant evidence in evaluating duty and breach (like custom), but it does
not alone produce either liability or non-liability.

 Physical Disability
 Yes - Taken into account. Eg. Blind
 Temporary impairments?
 Voluntary? Then no. eg. Voluntarily drank
 Involuntary? Someone spiked punch bowl? IDK
 Emergency?? – not of the defendant’s making
 Yes. Standard of care is a reasonable person in such an emergency.


A physician must obtain consent after informing the patient of all material
risks. Dobbs § 21.10. The risk need not be "likely."

the doctrine of informed consent recognizes a "therapeutic privilege" to withhold

information that would harm the patient. Dobbs § 21.10. This is not really a "privilege," as
that term usually denotes an affirmative defense, but rather prevents negligence liability
from the start. This would likely apply when the patient is exceedingly nervous and the
information would cause great mental distress. Of course such a claim would be an easy
excuse for the physician, so the question whether the patient was of such a nature that
disclosure should not have been made is for the jury.

The undisclosed risk must cause the injury.

Courts split on whether Plaintiff must testify she would have refused treatment had the risk
been disclosed. This formulation has the weaknesses of a subjective standard, and the
alternative would be to have the trier of fact decide whether a reasonable person would
have refused the treatment. The trouble here is that objectivity is contrary to the policy
behind informed consent of the patient controlling her destiny--self-determination is lost.

2) Breach
 How to determine breach ?
 Proof of causation
 There was something in the cali exercise about direct proof vs. circumstantial
proof? Idk check
 Res Ipsa Loquiter
 "The factfinder may infer that the defendant has been negligent when the
accident causing the plaintiff's harm is a type of accident that ordinarily happens
as a result of the negligence of a class of actors of which the defendant is the
relevant member."
-Restatement § 17.
 The traditional elements of res ipsa loquitur are
 Event does not normally happen in the absence of negligence
 The defendant controls the instrumentality
 Plaintiff could not have contributed.
 Jury can accept OR reject inference of negligence
 If accept – PP’s favour
 If reject – DD’s favour
 If defendant does not present any evidence to reject the inference, THE PP
DOESN’T NECESSARILY WIN – it is up to the jury whether they want to accept the
inference of negligence or not


3.a) Actual Causation

 The rule commonly used for factual cause is the "but-for" rule, which is "Conduct is a
factual cause of harm when the harm would not have occurred absent the
conduct." Restatement § 26.
 Think of hypo of speeding car hitting X person. Not negligent, because even if the car
had not been speeding, X would still have been hit. Can’t argue that “if car hadn’t
been speeding earlier car wouldn’t have been at that place at that exact moment in
time” – too philosophical
 What about cases when even if A’s negligence wouldn’t have resulted in P’s injury, B’s
negligence would still get about same injury? (Think about death)
 “Substantial Factor Test
 D's act is a factual cause when it was a material or substantial element in bringing
the event about. Dobbs§ 14.6 says in multiple cause cases "many courts have used
the substantial factor test endorsed by earlier Restatements."
 Second Restatement § 431 provides "The actor's negligent conduct is a legal cause
of harm to another
 if (a) his conduct is a substantial factor in bringing about the harm, AND
 (b) there is no rule of law relieving the actor from liability because of the
manner in which his negligence has resulted in the harm [proximate cause
rules]."
  Under this test, both A and B are "causes" of the death. That result is certainly
superior to the opposite, that neither is a cause of the death.
 A reasonable juror must be able to find cause in fact more likely than
not. – PP’s burden to prove
 Plaintiff doesn’t need to show that defendant's act is the only possible
cause.
 Causation can be inferred from expert testimony or common knowledge.
 A condition that multiplies chances of, and naturally leads to, an event,
causes it.
 When plaintiff falls on an icy sidewalk that defendant had a duty to
clear, defendant could argue that plaintiff might have fallen anyway.
That may be so, but the courts will allow the jury to find causation
when defendant's negligent conduct "creates a core risk of the kind
of harm suffered." Dobbs § 14.8. Another way of putting this is the
condition multiplies the likelihood of the event occurring and naturally
leads to it. Prosser & Keeton § 41. As you have correctly recognized,
the but for test does not work well in this small class of cases either.
 When plaintiff is in a chain collision, each defendant driver doesn’t need
to be a negative cause.
 You do not want the court to place the burden of production on the
defendants when more than one acts negligently, plaintiff is injured,
and the circumstances are such that plaintiff is unable to prove
which defendant caused the event? You are probably thinking that
plaintiff may be innocent, but the defendant(s) who did not actually
cause the injury are innocent too? And why should courts tinker with
shifting around the burden of production solely to benefit a
sympathetic plaintiff? Well and good, but did you think that the
drivers were all negligent with only the issue of cause in question?
Well, the idea of placing the burden of production on defendants
under such circumstances is controversial. Some courts will do it;
some will not. Restatement § 28 will. Accordingly, you are given
credit for a correct answer either way on this question. If you wanted
to answer maybe on this question, great.
 A special and unusual situation exists when two or more defendants are
at fault and plaintiff, for understandable reasons, cannot prove which
one actually caused the injury. These situations can be diverse. For
example, two hunters shoot in plaintiff's direction but only one hits her.
Or plaintiff is in an automobile chain collision; the other drivers are all
negligent but only one "caused" the injury. Or plaintiff has taken a
generic drug that could have been manufactured by any one of several
manufacturers. In situations like this, should the usual rule that plaintiff
must prove all elements of negligence, including factual causation, by a
preponderance of the evidence be relaxed? If so, how? Please indicate
which of the following methods you believe courts have used to solve
this riddle.
  Courts have applied the following theories:
 Plaintiff holds the standard burden of proving cause.
 The burden to disprove causation is on defendants.
 Defendants presumed to have equal liability shares.
 Defendants severally liable for proportionate shares.
 Some courts hold fast to traditional causation rules. Others assist plaintiffs by doing
such things as
 --shifting the burden of production on causation to the defendants,
 --presuming defendants have equal liability shares (which has the same effect of
placing the burden of production on each defendant to rebut the presumption), or
 --assessing a share of liability against each defendant proportionate to its share of
the market.
 Dobbs §§ 14.7-.10.
 You can decide for yourself which approach is the best. Courts have not made
defendants absolutely liable, as that is not negligence.

NEGLIGENCE PER SE

 An actor is negligent if, without excuse,

 the actor violates a statute that is
 designed to protect against the type of accident the actor's conduct causes,
 and if the accident victim is within the class of persons the statute is designed to
protect."
 Restatement § 14.
 --when it is intended only to protect the public (noise),
 --when the person injured is not in the class of persons protected (baby in a house
instead of on the street),
 --when the type of risk is not covered (firing a gun instead of a traffic mishap)
[Restatement § 288], or
 --when good excuse exists (unanticipated failure of brakes).
 "An actor's violation of a statute is excused and not negligence if:
 (a) the violation is reasonable in light of the actor's childhood, physical
disability, or physical incapacitation;
 (b) the actor exercises reasonable care in attempting to comply with the
statute;
 (c) the actor neither knows nor should know of the factual circumstances that
render the statute applicable;
 (d) the actor's violation of the statute is due to the confusing way in which the
requirements of the statute are presented to the public; or
 (e) the actor's compliance with the statute would involve a greater risk of
physical harm to the actor or to others than noncompliance."
 --- Restatement § 15.
 Since the question is one of duty, the majority of states allow the court to
decide whether an excuse will be accepted.
 DOES A JUDGE OR JURY DECIDE NEGLIGENCE PER SE????? BECAUSE
ISN’T IT TECHNICALLY UNDER DUTY AND JUDGE DECIDES DUTY?? I’M Commented [SG1]: DOUBT
SO CONFUSED