Negligence

1. Negligence

2. Causation ----a close causal connection between________ and ________ (D’s conduct / P’s injury) Causation has two categories: ________ and ________. (cause in fact/ proximate cause)

3. The causation in fact----actual cause • If an injury would not have occurred without the defendant’s act, then there is causation in fact, which can usually be determined by the use of the but for test • A but for test:(to determine the existence of actual cause) The defendant’s conduct is the actual cause of the plaintiff’s injury if that injury would not have occurred but for the defendant’s breach of duty.

4. (2)proximate cause • The courts have recognized that a negligent person should not necessarily be responsible for every injury actually caused by her negligence. • This idea of placing some legal limit on a negligent defendant’s liability for the consequences of her actions is called proximate cause. Courts often say that a negligent defendant is liable only for the proximate results of her conduct. • Since the Palsgraf case, the courts have used foreseeability as the test for proximate cause.

5. (3) actual cause/ proximate cause • Actual cause----causation in fact proximate cause----legal cause, which is a question not of fact, but of law and social policy. • Although a defendant’s conduct may have been the actual cause of a particular plaintiff’s injury, she is liable only if her conduct was also the proximate (legal) cause of that injury.

6. (4) Superseding causes • In some cases an intervening force occurring after a defendant’s negligence may play a significant role in bringing about a particular plaintiff’s injury. A superseding intervening force may break the connection between a wrongful act and injury to another. • When should an intervening force relieve a negligent defendant from liability? A. A high wind may spring up and this causes a fire set by Davis to spread and damage Parker’s property. Is Davis liable for the damage to Parker’s property?

7. B. Dalton negligently starts a fire that causes injury to several persons. The driver of an ambulance summoned to the scene to aid the injured has been drinking on duty and , as a result, loses control of his ambulance and runs up onto a sidewalk, injuring several pedestrians. Is Dalton responsible for the pedestrians’ injuries? ANALYSIS: A. If the intervening force is a foreseeable one, it will not relieve the defendant from liability. Yes. Davis is liable for the damage to Parker’s property.

8. B. If the intervening force that contributes to the plaintiff’s injury is unforeseeable , most courts hold that it is a superseding or intervening cause that relieves the defendant from any liability for negligence. No. Dalton is not responsible for the pedestrians’ injuries.

9. Actual / proximate / superseding cause Negligent actual cause Injuries conduct (A+B+C) Negligent Proximate cause Injuries conduct Foreseeablility (A+B) Negligent Intervening force Injuries conduct Superseding cause (foreseeablility)

10. 6. Defenses to negligence: (1) Stevens voluntarily goes for a ride in Markley’s car , even though Markley has told him that her brakes are not working properly. Could Stevens ask for damages if there is an accident? • assumption of risk: Stevens has voluntarily assumed the risk of injury as a result of the car’s defective brakes.

11. (2) If Durban steps into the path of Preston’s speeding car without first checking to see whether any cars are coming, could Preston ask for any recovery against Durban? • The doctrine of contributory negligence provides that plaintiffs who fail to exercise reasonable care for their ownsafety are totally barred from any recovery if their contributory negligence is a substantial factor in producing their injury.

12. (3) Durban pulls into the path of preston’s speeding car without looking, causing an accident. When Preston files suit to recover for the damage, Durban argues that the fact that Preston was speeding amounts to contributory negligence. If Preston can convince the court that the accident could have been avoided if Durban had looked before puling onto the highway, she has a good chance of overcoming Durban’s contributory negligence defense.

13. A contributorily negligence plaintiff may be able to overcome an valid contributory negligence defense by arguing that the defendant had the last clear chance to avoid harm. The doctrine of last clear chance focused on who is last at fault in time.

14. (4)Dunne negligently injuries Porter and Porter suffers $10,000 in damages. A jury, however, determines that Porter was 20 percent at fault. Porter could recover only $8,000 from Dunne. But what if Porter is determined to be 60% at fault? • Under a comparative negligence system, courts seek to determine the relative fault of the parties to a negligence action and award damages in proportion to the degree of fault determined.

15. But what if Porter is determined to be 60% at fault? The results vary depending on whether the state has adopted a pure or a mixed comparative fault system. • Under a pure comparative fault system, plaintiff are allowed to recover a portion of their damages even if they are more at fault than the defendant. • Under a mixed system, plaintiff who are as much at fault as, or more at fault than, the defendant are denied any recovery.