Proving Negligence

Study Advice

  1. Study with others
  2. Don’t memorize. Practice.

The Concept of Negligence

The principle behind liability/fault is __________________.

Tools for Identifying Reasonable Care

  1. __________________
  2. __________________
  3. __________________
  4. __________________
  5. __________________
  6. __________________

Special Considerations

  1. __________________
  2. __________________
  3. Uniqueness of medical malpractice

The Concept of Negligence

The principle behind liability/fault is reasonable care.

Tools for Identifying Reasonable Care

  1. Foreseeability
  2. Hand Formula (B < P*L)
  3. The Reasonable Person
  4. Custom
  5. Statute

Special Considerations

  1. Judge and jury relationship
  2. Challenges with proving negligence
  3. Uniqueness of medical malpractice

Rules vs. Standards

How to operationalize?

Rule

Analysis

  • Main arguments
  • Counterarguments
  • Policy argument

Conclusion

Customs & Statutes

Sword for proving negligence

Prove two things:

  1. Custom or statute = reasonable care

  2. Defendant failed to comply with custom or statute

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Shield for disproving negligence

Prove two things:

  1. Custom or statute = reasonable care
  2. Defendant complied with custom or statute

Statutes

Courts look to the purpose of the statute.

  1. Was this statute enacted to prevent harm?
  2. Was this the kind of harm the statute was enacted to prevent?

Proving Negligence

Tort of Negligence

Plaintiff must prove:

  1. Duty
  2. Breach
  3. Causation
  4. Harm

Concept of Negligence

To establish that the defendant’s conduct fell below standard of reasonable care, plaintiff needs to prove:

  1. What defendant did or did not do.

  2. What defendant should have done.

Two Topics in Proving Negligence

  1. Constructive notice
  2. Res ipsa loquitur

Constructive Notice

Negri v. Stop and Shop, Inc.

Gordon v. Museum of Natural History

In-Class Exercise: Moore v. Myers

Keep in Mind:

Procedural Posture

Procedural posture is the only way to discern the precise legal question that you need to answer.

Structure Matters

Standard legal argument format: Rule Analysis

  • Main arguments
  • Counterarguments
  • Policy argument Conclusion

Reasoning Matters

Tough cases require more than straightforward application of the rule.