Negligence: The Cause of Action

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Negligence The Cause of Action

• The Prima Facie Case
• Duty
• Breach
• Standard of Care
• Proof of Negligence
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Breach
• Standard of Care
• Proof of Negligence

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Ch II. D. Proof of Negligence Evidence

• Three types of evidence
• Documentary, or real
• Direct
• Circumstantial

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Ch II. D. Proof of Negligence Inferences
Theory of the case tells you what facts are
important
Target Fact (determined by theory of case)
Evidentiary Fact
Somewhat more likely
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Negligence D. Proof of Negligence
Res ipsa loquitur sed quid in infernos dicet?
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Res Ipsa Loquitur
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant failed to use reasonable care
A particular accident occurred
Somewhat more likely
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Res Ipsa LoquiturThe Foundational Facts
1) The accident must be of a kind which
ordinarily does not occur in the absence of
someones negligence. 2) The accident must be
caused by an agency or instrumentality within the
exclusive control of the defendant. 3) The
accident must not have been due to any voluntary
action or contribution on the part of the
plaintiff.
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Res Ipsa LoquiturThe Foundational Facts
If 1) When this type of accident occurs, it is
usually result of negligence, 2) Defendant in
exclusive control of instrumentality, and 3)
Not due to plaintiffs voluntary
contribution Then
Target Fact Defendant failed to use reasonable
care
Evidentiary Fact The accident occurred
Somewhat more likely
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Negligence D. Proof of Negligence
Restatement (Third) of Torts (proposed final
draft) It may be inferred that the defendant
has been negligent when the accident causing the
plaintiffs physical harm is a type of accident
that ordinarily happens because of the negligence
of the class of actors of which the defendant is
the relevant member.
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Negligence D. Proof of Negligence
Burden of Proof Burden of producing
evidence Burden of persuasion Inference meets
the burden of producing evidence Presumption
shifts the burden of producing evidence
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D. Proof of Negligence
Inference a conclusion the jury is permitted,
but not required, to draw. Presumption affecting
the burden of producing evidence a conclusion
the jury is required to draw, unless evidence is
introduced to rebut the conclusion (to prove,
that is, that the conclusion is not
correct). Presumption affecting the burden of
proof a conclusion the jury is required to draw,
unless the rebutting evidence shows that more
likely than not, the conclusion does not follow.
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Ch. II (E) The Special Case of Medical
Malpractice.
1) How is the standard of care different in a
medical malpractice case? 2) Are the rules of
proof different in medical malpractice case? 3)
How is a case based on a failure to get the
patients informed consent different from a case
based on the physicians negligence in treatment?