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Negligence
| Question | Answer |
|---|---|
| What is Negligence? | Involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances, not meeting the Standard of Care as another reasonably person would. |
| What is Aggravated Negligence? | Willful, Wanton & Reckless Behavior; a deliberate disregard for life. |
| What are the Elements of a Negligence Claim? | Duty Owed, Breach of Duty, Proximate Cause, Damages |
| What is the Standard of Care? | An essential concept in determining whether a person was negligent and potentially liable for a tort. Would a reasonable person have acted in the same way? |
| What is a Duty Owed? | A duty is simply a legal obligation. In order to be sued for Negligence, the Defendant must have owed a duty to the Plaintiff. |
| What is Breach of Duty? | Occurs when a person's conduct fails to meet an applicable standard of care. |
| What is Proximate Cause? | Proximate cause is the legal cause of an injury, the cause that produced a foreseeable reaction, and the one but for which the injury or harm in question would not have happened. |
| Is Damages an Element required for a Negligence Case? | Yes, Damages is an element required; meaning the plaintiff must have suffered damages (injuries, loss, etc.) in order for the defendant to be held liable in a Negligence Claim. |
| What is Attributable Risk? | It is what the Plaintiff did cause the injury or event that caused the injury. |
| What is Negligence PER SE? | Violation of a statute or regulation without an excuse is automatically considered to have breached her duty of care and is therefore negligent as a matter of law. |
| What is Negligence PRIMA FACIE? | The existence of a legal duty that the defendant owed to the plaintiff. defendant's breach of that duty. plaintiff's sufferance of an injury. proof that defendant's breach caused the injury. |
| What is RES IPSA LOQUITUR? | Things speak for itself. ... Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the defendant. |
| When is RES IPSA LOQUITIR Applicable? | Comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. |
| What Causation in Fact – Actual Cause? | The plaintiff’s injury would not have occurred without the defendant’s act |
| What Proximate Causation – “But For Test”? | The plaintiff’s injury was directly caused by the defendant’s act and was a reasonably foreseeable result of the defendant’s act. |
| What is the Substantial Factor Test? | States that if a defendant's actions were a substantial factor in the crime, then that defendant would be found guilty. So, in the firing squad example, all the members of the firing squad would be found guilty. |
| What are Concurrent Tests? | Forces which come into play after the defendant has committed his negligent act. |
| What is the Alternative Cause Doctrine? | Each defendant has the burden of proving that his or her negligent act did not cause the plaintiff's injury. ... For example, defendant A, defendant B, and a plaintiff are hunting. |
| What are Intervening Forces? | Forces which come into play after the defendant has committed his negligent act. |
| What is a Dependent Intervening Force? | An act of a third person which is considered a normal response to the defendant's act. |
| What are Intervening Causes? | Events that occur after a tortfeasor's initial act of negligence and causes injury/harm to a victim. An intervening cause will generally absolve the tortfeasor of liability for the victim's injury only if the event is deemed a superseding |
| What Are Intervening Causes? | Something that was intended, reasonably foreseeable or sufficiently related to the defendant's initial act(s). |
| What is an Example of an Intervening Cause? | The defendant punched the victim in the head, and the victim hit head on a nearby car and then the pavement. On being rushed to the hospital for his head injuries, the victim refused to get a CAT scan, but his head injuries persisted. |
| What is an Independent Intervening Force (AKA Superseding Cause)? | A third party's actions intervene and cause the accident. |
| What is a Tortfeasor? | A person or entity who is found to be responsible under civil law for an injury caused to another person. |
| What is a Joint Tortfeasor? | Occurs when two or more individuals with joint and several liability in a tort action for the same injury to the same person or property. |
| What is required to be Joint Tortfeasors? | To be considered joint tortfeasors, the parties must act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. |
| Will a Defendant recover with any % in Contributory Negligence? | The Pure Contributory Negligence Rule is literally a defense which says that a damaged party cannot recover any damages if it is even 1% at fault. |
| What is Contributory Negligence? | Contributory Negligence is a rule that prevents an injured party from collecting any damages after a car accident if they were careless and partially to blame for the wreck. |
| What is Comparative Negligence? | Comparative Negligence states that when an accident occurs, the fault and/or negligence of each party involved is based upon their respective contributions to the accident. |
| What is Modified Comparative Negligence? | Modified Comparative Negligence is the same as pure comparative negligence if the patient is responsible for less than half of the fault but differs from Pure Negligence if the patient is more than half responsible. |
| What are the 2 types of Modified Comparative Negligence? | Modified A - 50% Rule: If Plaintiff is 50% or more at fault for an accident, they're barred from collecting compensation for their own harm. Modified B - 51% Rule: If Plaintiff is 51% or more at fault for the accident, they are barred from recovery. |
| What is the Pure Contributory Negligence Rule? | The Pure Contributory Negligence Rule is literally a defense which says that a damaged party cannot recover any damages if it is even 1% at fault |
| In Alabama, if the Plaintiff is 1% responsible? | They will see NO RECOVERY! |
| What is Synthesis"? | Synthesis is the binding together of various authorities (e.g., statutes, cases interpreting a statute, or cases developing the common law) into a whole description that states a rule of law or expression of legal policy. |
| What should a lawyer be able to do "By the Way of Synthesis"? | A lawyer should be able to problem solve to synthesize ideas from groups, rules, laws, etc., to make a strongcase for his client. often do not sufficiently value case synthesis because this skill ... |
| Does the mere presence at the commission of a tort render an observer liable as if he were a participant? | NO |
| When the Negligent Conduct of more than one actor combines to produce a particular Injury, to the P, this is known as the? | Proximate ("But For") Cause. |
| Can a Plaintiff sue both joint tortfeasors individually and together? If so, what is this called? | Yes, and this is called Collateral Liability. |
| What is the One-Satisfaction Rule? | One-Satisfaction Rule is the principle that a plaintiff should only recover once for a particular injury. |
| What is the Doctrine of Collateral Estoppel? (Codified by Ashe v. Swenson). | The Doctrine of Collateral Estoppel, a common law legacy. All litigants have a "full and fair" opportunity to bring suit except where one party has brought effectively the same suit. |
| What is the original English Joinder Rule that is now altered by Statue? | The Plaintiff could obtain but one judgment against one or more "joint tortfeasors; only those who acted in concert or were vicariously liable for each other's actions. |
| What is the Collateral Source Rule? | The Rule or Doctrine is an American Case Law Evidentiary Rule that prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant. |
| What is the Universal Rule? (Price v. Baker) | The Universal Rule is the release of one joint tortfeasor releases all. |
| What does Satisfaction of a Judgement Mean? | Satisfaction of a Judgement means that there was actual payment of the Judgement. |
| What does Settlement of a Judgement Mean? | In law, a settlement of a judgement means resolution between disputing parties about a legal case, reached either before or after court action begins. |
| What is an Inpleader action? | A suit pleaded between two parties to determine a matter of claim or right to property held by a third party. |
| What is the Mary Carter Agreement? | A Mary Carter Agreement is one such arrangement whereby the settling defendant nevertheless goes to trial, but the liability of the settling defendant is limited. |
| How does Public Policy Impact the Law? | Public policy impacts what the government does and how governmental decisions are made. It determines the actions that a government chooses to implement or emphasize, as well as those that it decides not to act on. |
| What is Spousal Tort Immunity? (Yellow Cab Co. V. DC) | Walker, supra, following Yellow Cab Co. v. DC, except it was decided under the doctrine of marital immunity rather than the doctrine of parental immunity. |
| What is an example of a right to Indemnity? | Life Insurance Policy. The duty of a party to compensate another for damages sustained. |
| What is the difference between Contribution & Indemnity? | Contribution allows one defendant to sue other parties for only a portion of the total damages. Indemnity allows a defendant to sue other parties for the entire amount of the damages. However, indemnity can only be used where the defendant is completely n |
| Successive Tortfeasors (Related Incidents/Allocation B/T Actors) are often referred to as? | The Original Tortfeasors. |
Created by:
drgedwards
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