Fred Davis chapter 6 test 3

Superseding Cause

An unforeseeable intervening event may break the connection between a wrongful act and an injury to another. If so, the event acts as a superseding cause- that is, it relieves a defendant of liability for injuries caused by the intervening event. EX 6.23 While riding his bicycle, Derrick negligently hits Julie, who is walking on the sidewalk. As a result of the impact, Julie falls and fractures her hip. While she is waiting for help to arrive, a small plane crashes nearby and explodes, and some of the fiery debris hits her, causing her to sustain severe burns. Derrick will be liable for Julie's fractured hip because the risk of hitting her with his bicycle was foreseeable. Normally, Derrick will not be liable for the burns caused by the plane crash- because the risk of a plane's crashing nearby and injuring Julie was not foreseeable.

Defenses to Negligence

Defendants often defend against negligence claims by asserting that the plaintiffs failed to prove the existence of one or more of the required elements for negligence. Additionally, there are three basic affirmative defenses in negligence cases(defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states): 1) Assumption of Risk, 2)Superseding Cause, and 3)Contributory and Comparative Negligence

The Injury Requirement and Damages

For a tort to have been committed, the plaintiff must have suffered a legally recognizable injury. To recover damages(receive compensation), the plaintiff must have suffered some loss, harm, or invasion of a protected interest. Essentially, the purpose of tort law is to compensate for legally recognized injuries resulting from wrongful acts. Compensatory damages are the norm in negligence cases. As noted earlier, a court will award punitive damages only if the defendant's conduct was grossly negligent, reflecting an intentional failure to perform a duty with reckless disregard of the consequences to others.

The Duty of Professionals

If an individual has knowledge, skill, or training superior to that of an ordinary person, the individual's conduct must be consistent with that status. Because professionals-such as physicians, dentists, architects, engineers, accountants, and lawyers- are required to have a certain level of knowledge and training, a higher standard of care applies. In determining whether professionals have exercised reasonable care, the law takes their training and expertise into account.

The Duty of Landowners

Landowners are expected to exercise reasonable care to protect persons coming onto their property from harm. In some jurisdictions, landowners are held to owe a duty to protect even trespassers against certain risks.

Malpractice

Negligence- the failure to exercise due care- on the part of a professional, such as a physician, is commonly referred to as malpractice.

Assumption of Risk

-A defense to negligence. A plaintiff may not recover for injuries or damage suffered from risks he or she knows of and voluntarily assumed.

Res Ipsa Loquitur

-A doctrine which negligence may be inferred simply because on event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves". The courts may infer that negligence has occurred. Then the burden of proof rests on the defendant- to prove she or he was not negligent. This doctrine is applied only when the event creating the damage or injury is one that ordinarily would occur only as a result of negligence.

Business Invitee

-A person, such as a customer or a client, who is invited onto business premiss by the owner of those premises for business purposes.

Contributory Negligence

-A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault.

Comparative Negligence

-A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely. "Pure" Comparative Negligence: allows the plaintiff to recover, even if the extent of his or her fault is greater than that of the defendant. For example, if the plaintiff was 80% at fault and the defendant 20% at fault, the plaintiff may recover20% of his or her damages. "50% Percent" Comparative Negligence: Prevents the plaintiff from recovering any damages if she or he was more than 50% at fault. Under this rule, a plaintiff who is 35% at fault could recover 65% of his or her damages, but a plaintiff at 65% at fault could recover nothing.

Good Samaritan Statutes

-A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly, thereby causing further harm.

Dram Shop Act

-A state statute that imposes liability on the owners of bars and persons who serve alcoholic drinks for injuries resulting from accidents caused by intoxicated persons.

Causation in Fact

-An act or omission without which an event would not have occurred. Is there causation in fact? Did the injury occur because of the defendant's act, or would it have occurred anyway? If an injury would not have occurred without the defendant's act, then there is causation in fact. Causation in Fact can usually be determined by the use of the "but for" test: but for the wrongful act, the injury would not have occurred.

Negligence Per Se

-An action or failure to act on violation of a statutory requirement. "in or of itself" Negligence per se may occur if an individual violates a statute or ordinance and thereby cause the kind of harm that the statute was intended to prevent. The statute must clearly set out what standard of conduct is expected, when and where it is expected, and of whom it is expected.

Proximate Cause

-Legal cause. It exists when the connection between an act and a injury is strong enough to justify imposing liability. Courts use proximate cause to limit the scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions If a defendant's action constitutes causation in fact but a court decides that the action was not the proximate cause of the plaintiff's injury, the causation requirement has not been met- and the defendant normally will not be liable to the plaintiff.

Strict Liability

-Liability that is imposed on certain regardless of fault. Or "liability without fault".

Duty of Care

-The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence.

Negligence

-The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances. To succeed in a negligence action, the plaintiff must prove each of the following: 1. DUTY. The defendant owed a duty of care to the plaintiff. 2. BREACH. The defendant breached that duty. 3. CAUSATION. The defendant's breach caused the plaintiff's injury. 4. DAMAGES. The plaintiff suffered a legally recognizable injury.

Reasonable Person Standard

-The standard of behavior expected of a hypothetical "reasonable person." It is the standard against which negligence is measured and that must be observed to avoid liability for negligence.