Chapter 9
Damages in a negligence case refers to ________blank.
A compensable loss suffered by the plaintiff.
Breach of duty in a negligence case refers to ________blank.
A failure to live up to the standard of care a reasonable person owes to others.
two parts of causation
1. Actual Cause 2. Proximate Cause
What must the plaintiff prove to win a negligence case?
1. duty 2. breach of duty 3. causation 4. damages *must prove ALL
What are the 2 types of the negligence claim defense assumption of risk?
1. express assumption of risk 2. implied assumption of risk
Which of the following is a defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove can be attributed to the plaintiff's own negligence?
A pure comparative negligence defense
Which of the following is not true in regards to strict liability?
Plaintiffs always receive punitive damages.
Which of the following is sometimes referred to as legal cause?
Proximate cause
What damages are imposed to punish the offender and deter others from committing similar offenses?
Punitive
Which of the following aids plaintiffs in establishing negligence claims?
Res ipsa loquitur and negligence per se
Do any states count actual and proximate causation as the same?
a few do
the determination that the plaintiff's harm was a direct result of the defendant's breach of duty
actual cause/cause in fact
In the negligence claim defense ___, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of actual harm the defendant caused.
assumption of risk
Contributory negligence applies in cases in which the defendant and plaintiff were...
both negligent.
When are punitive damages sought as far as negligence cases?
in gross negligence cases where the action was committed with extreme reckless disregard for the property or life of another person
Actual cause AKA...
cause in fact.
Can hosts be held liable for injuries caused by individuals who drink at their house?
in some states
Punitive damages are also known as Blank______ damages.
exemplary
A plaintiff has filed a negligence claim in a contributory negligence jurisdiction. The court ruled that the plaintiff did contribute to his or her own injuries. The doctrine that would still allow the plaintiff to recover damages is known as the Blank______ doctrine.
last-clear-chance
Many states have adopted a ___ that allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff. (like a car turning at the intersection and another one that keeps going)
last-clear-chance doctrine
The Blank______ allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final opportunity to avoid the action that injured the plaintiff.
last-clear-chance doctrine
Proximate cause AKA...
legal cause.
In negligence per se legislative statutes are the ___ standard for behavior.
minimum
Courts calculate damages according to ___, which is calculated the same as the pure comparative negligence except the defendant must be over 50% at fault.
modified comparative negligence
What does negligence per se mean?
negligence in or of itself
Are strict liability activities illegal?
no, but people hold liability who partake
The reasonable person standard is a measurement of the way members of society should act in a given situation. The two things that are used to determine a defendant's duty of care is the degree of care and Blank______ that a reasonable person would exercise under similar circumstances.
skill
A ___ is an unforeseen event that interrupts the casual chain between the defendant's breach of duty and the damages the plaintiff suffered.
superseding cause
danger invites rescue doctrine
the principle that a tortfeasor who is liable for endangering a person is also liable for injuries to someone who reasonably attempted to rescue the person in danger
Res ipsa loqutiur means...
the thing speaks for itself.
The law holds the individual liable without fault when the activity in which they engage in satisfies 3 conditions:
1. it involves a risk of serious harm to people or property 2. it is so inherently dangerous that it can never be safely undertaken 3. it is not usually performed in the immediate community
2 doctrines adopted by courts to aid plaintiffs in establishing negligence claims
1. res ipsa loqutiur 2. negligence per se
To establish res ipsa loqutiur in most states the plaintiff must prove...
1. the event was a kind that ordinarily does not occur in the absence of negligence 2. other responsible causes including the conduct of third parties and the plaintiff have been sufficiently eliminated 3. the indicated negligence is within the scope of the defendant's duty to the plaintiff
In contributory negligence, the defendant must prove what two things:
1. the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm 2. the plaintiff's failure was a contributing cause to the plaintiff's injury
A case of negligence was decided by a jury where the jury found that the defendant was 30% at fault for the plaintiff's injuries. In a pure comparative negligence jurisdiction, the plaintiff will recover: Blank______.
30% of the damages
Gretchen and Theo are students who unfortunately ran into each other while bicycling on campus. What is the duty of care owed in this type of negligence case?
reasonable person
Palsgraf v. Long Island Railroad
Background: Man tried to board train with fireworks, RR attendants attempted to help him onto trail, but the package was dropped and the fireworks exploded, causing Palsgraf to be injured. Palsgraf sued RR for negligence I: Foreseeability, negligence R: Must suggest causation - foreseeability A: RR hadn't been negligent toward her because her injury was not forseeable C: Palsgraf's complaint was dismissed
Carson is jet skiing on the local lake. He is showing off for his girlfriend Becky and negligently hits Carmen who is lying on a raft sunbathing in the lake. Which of the following is true?
Carson has a duty to come to the aid of Carmen because he negligently hit her.
Michael is in an accident with Sheridan whereby he causes $10,000 in damages to her car. If the court ordered Michael to pay the $10,000, what type of damages would this be?
Compensatory
Which of the following are the most frequently awarded damages?
Compensatory
___ refer to the laws that make bar owners and bartenders liable for the acts of individuals who become intoxicated at the bar.
Dram Shop Acts
___ allow bartenders and bar owners to be held liable for injuries caused by individuals who become intoxicated at the bar.
Dram shop acts
___ occurs when the plaintiff expressly agrees to assume the risk posed by the defendant's behavior.
Express assumption of risk
Once a plaintiff proves the elements of res ipsa loquitur, the defendant will automatically lose the case against them. (T/F)
False
While out for a long run, Heidi sees a child playing alone and unsupervised near a very busy intersection. Which of the following is true?
Heidi has no duty to render assistance to the child.
Courts consider the following factors in attempting to determine whether a reasonable person would have owed a duty to others: How serious was the harm? How likely was it that the harm would occur? How socially beneficial was the plaintiff's conduct that posed the risk of harm? What costs would have been necessary to reduce the risk of harm?
How serious was the harm? How likely was it that the harm would occur? What costs would have been necessary to reduce the risk of harm?
One plaintiff's doctrine that literally means "the thing speaks for itself" is known as: Blank______.
res ipsa loquitor
Which of the following is proven when a defendant's violation caused a plaintiff to suffer from a type of harm that a statute or regulation was created to prevent?
Negligence per se
___ applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs.
Negligence per se
Which of the following doctrines are created to help a plaintiff when there is no direct evidence of negligence? (Check all that apply.) Res ipsa loquitur Negligence per se The last-clear-chance doctrine The reasonable person standard
Res ipsa loquitur Negligence per se
___ liability is liability without fault.
Strict
[Blow Up] Patty has several full gas cans in the bed of her pick-up truck, because she runs a landscaping and gardening company and needs the gas for her mowers, trimmers, tillers and weed eaters. On the way home from the gas station, Patty stops at her local garden store to stock up on supplies. Teresa, texting and driving, does not see Patty's pickup truck and negligently rear-ends Patty's truck. The truck explodes and results in the garden store burning to the ground. The garden store sues Teresa for negligence claiming that Teresa should have to pay for the entire garden store. The garden store claims that it should be able to recover under the res ipsa loquitur doctrine. Is Teresa the proximate cause of the garden store burning?
Teresa is not the proximate cause of the garden store burning because it was not foreseeable that Patty would have gas in the back of her pick-up truck that would result in such a fire.
What was the final result on appeal in the Case Opener involving whether the doctrine of res ipsa loquitur applied to the lawsuit brought against landowners after the plaintiff fell through a wooden dock located on the defendants' property?
That the doctrine of res ipsa loquitur applied.
Which of the following is not required to establish res ipsa loquitur in most states? The event was a kind that ordinarily does not occur in the absence of negligence. Other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated. The defendant's intent to cause harm is established by a preponderance of the evidence. The indicated negligence is within the scope of the defendant's duty to the plaintiff.
The defendant's intent to cause harm is established by a preponderance of the evidence.
Why is actual cause/cause in fact also known as but for causation?
The plaintiff argues that the damages would not have occurred but for (except because of) the actions of the defendant.
If a plaintiff cannot establish all four elements of a negligence claim, what result should the plaintiff expect?
The plaintiff will be denied recovery due to a failure to establish all four elements of a negligence case.
In some situations, the law specifies the duty of care one individual owes to another. (T/F)
True
Teresa is not the proximate cause of the garden store burning because it was not foreseeable that Patty would have gas in the back of her pick-up truck that would result in such a fire. (T/F)
True
What type of negligence is used in Germany when the defendant is unaware that the act constitutes an offense or unaware that the act is occurring at all?
Unconscious negligence
Felipe decided he wanted to impress his girlfriend Xena and signed up to ride a bucking bronco at Buckaroo Roo's. Felipe, never being on a bronco before, was instantly bucked off and broke his arm. He wants to sue Buckaroo Roo's for his injury. Does Buckaroo Roo's have any defense?
Yes, the assumption of the risk doctrine.
A train started to pull away from the station when suddenly, a passenger started running by the train trying to catch it. The conductor pulled the man aboard, but in the process, he dropped the parcel he was holding. The parcel fell and exploded since it contained fireworks that were ignited from the sparks from the train wheels. The rockets shot off in all directions and managed to tip over a huge freight scale on the platform. The scale fell on Mr. Paul, who suffered injuries as a result. If Mr. Paul tries to sue the railroad company for his injuries, he would likely fail because he cannot successfully demonstrate Blank______.
causation
Superseding causes disprove the ___ element necessary to sustain a negligence claim.
causation
Actual cause and proximate cause are associated with __________.
causation.
To use the ________blank defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused.
assumption of risk
If a defendant's breach of duty is the actual cause of a plaintiff's injury, this is known as
cause in fact.
In some states, the defense of contributory negligence has been replaced by the defense of...
comparative negligence.
If any bystanders are injured while attempting to rescue victims injured by the defendant's negligence, many courts hold the defendant liable for their injuries under what is known as the Blank______ doctrine.
danger invites rescue
If the defendant successfully proves contributory negligence, the plaintiff will be ___ damages.
denied all
Philip was driving his car and failed to see a stop sign. He hit a car driven by Oscar. Oscar was not wearing his seatbelt at the time of the crash, and thus sustained more serious injuries than he would have had if he had been wearing his seatbelt. The court found that both parties were negligent. If this was a contributory negligence jurisdiction, Oscar would be able to recover: Blank______.
nothing
Nancy had some surgery on her lungs. After the surgery, she had great discomfort in her chest and trouble breathing. She went back to her doctor who took some x-rays of her chest. The x-ray showed that a surgical instrument had been left in her chest. Nancy can sue her surgeon pursuant to the doctrine of: Blank______.
res ipsa loquitur
On a vacation holiday, Anne decides to rent a fishing boat. She is asked to sign a contract stipulating that the defendant will not be held responsible for any boating accidents. If Anne signs, this is an example of __________.
express assumption of the risk.
In most states, proximate cause is determined by...
foreseeability.
The four questions a court considers to determine whether a reasonable person would have owed a duty to others include all of the following except: Blank______ what costs would have been necessary to reduce the risk of harm? how socially beneficial was the defendant's conduct that posed the risk of harm? how likely was it that the harm would occur? how intentional was the harm?
how intentional was the harm?
In the modified comparative negligence, the plaintiff can recover damages Blank______.
if the defendant is more than 50 percent at fault
In ___ the plaintiff implicitly assumed a known risk.
implied assumption of risk
When ________blank applies, the plaintiff is not required to show that a reasonable person would exercise a heightened duty of care toward the plaintiff.
negligence per se
A store selling alcohol to minors, and the minor gets drunk and kills a pedestrian the pedestrian's family can use...
negligence per se.
If the defendant's violation causes the plaintiff to suffer from the type of harm that the statute intends to prevent, the violation is deemed...
negligence per se.
Abigail was suing Gregory for injuries she sustained when Gregory negligently ignored the stop signal and ran into Abigail with his car. In his defense, Gregory pointed out that Abigail ignored the "Don't Walk" sign and crossed the street. If Gregory can show Abigail was 10% at fault for her own injuries in a contributory negligence jurisdiction, Abigail would: Blank______.
not be able to collect any damages
Darcy sued Tony for negligence in a modified comparative negligence jurisdiction. A judge ruled that Darcy was 55% at fault for her own injuries. Darcy will be able to recover: Blank______.
nothing
If the defendant is less than 50% at fault, then what is the plaintiff given in damages?
nothing
Res ipsa loquitor and negligence per se are designed to help plaintiffs sue for negligence when there are no witnesses to the conduct or where evidence of the negligence is destroyed. These types of negligence are known as: Blank______.
plaintiff's doctrines
Causation is the third element of a successful negligence claim and is made up of two separate elements: actual cause and: Blank______ cause.
proximate
If the defendant could not foresee damages the plaintiff suffered as a result of his action, the plaintiff's negligence claim will not be sustained because it lacks the element of...
proximate causation.
Superseding causes allow the defendant to avoid liability because they are evidence that the defendant's breach of duty was not the ___ of the plaintiff's injuries.
proximate cause
The Palsgraff v Long Island RR Co case is one of the most well-known cases addressing the issue of Blank______.
proximate cause
the extent to which, as a matter of policy, the defendant will be held liable for the consequences of his actions
proximate cause/legal cause
In typical negligence cases, courts rarely award _____ damages, or __________ damages, which are imposed to punish the offender and deter others from committing similar offenses
punitive, exemplary
According to a ___ defense, the court determines the percentage of fault of the defendant and the defendant is responsible for that percentage.
pure comparative negligence
Tom was in charge of the demolition of a large high-rise building. The blasting was to take place the next day and in preparation for the blast, Tom had moved all of the explosives to the site. The explosives were stored under lock and key in a trailer used by the demolition crew. That night there was a horrible storm and a bolt of lightening struck the trailer, setting off the explosives. The trailer was blown up and shards of the trailer were sent flying for miles. One of the shards struck a pedestrian five blocks from the blast causing some serious lacerations. The pedestrian sued the demolition company for negligence. The best defense of the demolition company is: Blank______.
superseding cause
What do the courts use to determine the defendant's duty of care?
the reasonable person standard
What couldn't be avoided, even with reasonable care?
unfortunate accident
How is express assumption of risk usually shown?
written contracts
