I.

Issue: Was [blank] negligent for [blank]. A. Definition: Negligence is the creation of unreasonable risk of harm which causes injury. B. Elements: To establish a claim in Negligence, a plaintiff must prove by a preponderance of the evidence that: (1) the defendant owed the him or her a duty, (2) the defendant breached that duty, (3) the breach caused the plaintiffs harm, and (4) the plaintiff suffered some type of injury to person or property. II. Issue: Did [blank] owe [blank] a duty to [do or not to do] [whatever conduct the plaintiff is claiming was negligent] and did the defendant breach that duty? A. Definition: Duty can be described as a standard of care. The standard of care in most cases is to behave as a reasonably prudent person under the same or similar circumstances. A breach of duty is conduct, by way of act or omission, which falls below the standard of care, exposing others to a foreseeable and unreasonable risk of harm. i. Note: Reasonable Person Exceptions- Common Carriers, Minors, Experts, Physical Disabilities B. To determine if a risk is unreasonable, a court will typically consider: the magnitude of the risk, the utility of the conduct, the gravity of the possible harm, and the burden of precautions. Hand formula. i. Is custom an issue? If yes: Custom is admissible as evidence of standard of care owed, but is not conclusive. ii. Is there a statute? If yes: Compliance with a statute is usually not conclusive evidence of the standard of care, but a violation may be considered negligence per se. 1. Under the negligence per se doctrine, an actor may be considered negligent as matter of law when: (1) he violates the statute, (2) the violation caused the harm, (3) the person was a member of the class of people that the statute was meant to protect, and (4) the type of injury which occurred was the type in which the statute was meant to protect against. a. Evidentiary Weight: Some statutes specially provide for a civil remedy and others specially exclude it. Where a statute is silent, a court could chose to give any of the following weights to the evidence of violation of the statute: i. Negligence Per Se ii. Presumption iii. Inference C. Affirmative Duties i. No duty to warn 1. Exceptions: a. Duty to prevent harm from taking place when actor caused condition b. Duty to aid another harm by the actors conduct c. Duty not to interfere with someone giving aid d. When assuming a duty, cannot leave someone in a worst position ii. Gratuitous Undertakings: Must use reasonable care when gratuitously helping someone; liable if the failure to do increases the risk of harm or the harm is suffered on reliance upon the undertaking. D. Special Relationships: i. Landlord/Tenant: Protect against foreseeable criminal acts (Narrow/Broad) ii. Psychiatrist: Duty to warn another when a patient threatens harm (Narrow/Broad) iii. Owners and Occupiers 1. Trespasser: One who enters or remains on land with the permission. Duty owed- Not to intentionally harm.

a. Known Trespasser: If you know the trespasser is there, there is a duty not to injure trespasser by negligent acts and/or warn. b. Frequent Trespasser on Limited Area: Same duties as known trespasser. c. Attractive Nuisance Doctrine: Landowner must exercise reasonable care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his land. 2. Licensee: One who enters the land of another with permission, express of implied. Duty owed- Duty not to injure by ones negligent act and warn of concealed conditions. 3. Invitee: Public/Private. Duty owed- reasonable care to inspect land for dangerous conditions, not to injure by ones negligent activities, and warn of concealed conditions. III. Issue: Res Ispa A. Definition: This doctrine allows the plaintiff to use circumstantial evidence as direct evidence of negligence in certain situations. B. Elements: (1) the event is of the type that normally does occur in the absence of negligence, (2) the harm causing agent was within the exclusive control of the defendant, and (3) the harm was not due to any voluntary action or contribution on the part of the plaintiff. C. Evidentiary Weight: Majority- Inference. Others- Presumption D. Things to Note: i. Directed Verdicts- No unless strongly in favor. ii. Act of God- No Res Ispa iii. Against Multiple Defendants- No Res Ispa 1. Exception: Special Relationship iv. Chain of Custody- Yes Res Ispa v. In Plaintiffs Possession- Yes Res Ispa as long as item was being used for intended purpose. IV. Issue: Was the defendants conduct the cause-in-fact of the plaintiffs harm? A. Definition: Cause-In-Fact is the actual cause of the harm. B. But-For Test: Cause-In-Fact exists if the plaintiff would not have been injured but for the defendants negligence. C. Things to Note: i. Increased Risk of Harm- Cause of harm if actor increased risk of harm and harm did occur. ii. Two negligent acts, either one would have caused the result without the other, cause one harmAll tortfeaors are jointly and severally liable. iii. Alternative Liability- Where A or B could have caused the harm, but not both, both are jointly and severally liable unless the tortfeaors are able to prove that they did not prove the harm. iv. Market Share Liability: 4 Requirements- (1) All named defendants are potential tortfeaors, (2) Harmful products are fungible, (3) Plaintiff cannot identify who caused the harm though no fault of her own and (4) Substainally all manufactures of product are joined. V. Issue: Was the defendants negligence the proximate cause of the plaintiffs harm? A. Definition: A cause which is legally sufficient to result in liability. B. Two Tests: i. Direct Causation: 1. Intervening cause: something which happens after defendants negligence and before the plaintiffs harm. a. Foreseeable- Doesnt break chain of causation b. Unforeseeable- Does break chain and becomes a superseding cause. ii. Foreseeability

a. Foreseeable plaintiff i. Zone of danger; May already be established by duty b. Foreseeable manner i. Way it happened; Not needed unless extraordinary c. Foreseeable result i. Harm within the risk; Foreseeable kind of harm 2. Issue: Was [the plaintiff] also negligent? a. Contributory negligence i. Definition: Established when the plaintiff has not taken reasonable care and in consequence of her default has suffered injury. Traditionally, it completely bared the plaintiff from recover. 1. Statutory duty- If member of class, not contributorily negligent 2. Custodial care- Not barred if irresistible impulse 3. Private necessity- If emergency, not barred if reasonable 4. Causation- Conduct must be a substantial factor to bar recovery for plaintiff 5. Seat belt defense- Slight majority rejects, Others would only lower damages 6. Last clear chance- (Plaintiffs doctrine) Defendant was able to avoid injury by reasonable care a. Helpless: Plaintiff cant prevent; Defendant could have prevented with reasonable care. b. Inattentive: Plaintiff didnt realize; Defendant did and could have prevented with reasonable care. b. Comparative negligence i. Definition: A partial defense that reduced the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiffs own negligence contributed to cause the damages. 1. Pure 2. Greater fault bar (50-50) 3. Equal fault bar (49-51) c. Assumption of risk i. Definition: A defense which reduces the amount of damages that the plaintiff can recover in a negligence based claim based upon the idea that plaintiff knowingly and willingly accepted a certain type of risk for which the defendant should not be liable for injuries. 1. Traditional a. The plaintiff voluntarily and knowingly encounters the risk. b. The plaintiff knows and understands the risk. 2. Modern a. Primary- Duty owed by the defendant? i. If No- Primary assumption of risk is established and Plaintiff cannot recover. ii. If Yes- Plaintiff negates the primary assumption of risk, go on to secondary. b. Secondary- Was the plaintiff negligent? i. If yes- Secondary assumption of risk is established and Plaintiff cannot recover. ii. If no- Plaintiff may recover.