negligence Flashcards
(38 cards)
negligence elements
- duty
- breach
- causation
- damages
Duty standard of care
a person acts negligently if the person does not exercise rsbl care under all the circumstances
General Duty
legal duty to act as an odrinary, prudent, rsbl person
Risk v. utility
conduct is not negligent unless the magnitude involved so outweighs its utility as to make the risk unreasonable
when the actor recognizes that his conduct involves a risk, he is required to know
a) the quality and habits of human beings and the qualityies characteristics and capacities that are common knowledge at the time and in the community
b) the common law, legislative enactments, and general customs
Primary Factors for rsbl care
- foreseeable likelihood that the persons conduct will result in harm
- foreseeable severity of any harm that may ensue
- the burden of precautions to eliminate or reduce the risk of harm
B < P x L
B - burden of adequate precautions
P - probability of harm
L - loss severity
RPP Standard
how would a reasonable, prudent person would conduct themselves under these facts
duty imposed by law
an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another
Duty (judge or jury)
judge issue
- the judge decides if there is a duty
standard of care of person w superior ability
the skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a rsbly careful person
who is the “reasonable person”
- normal intelligence
- normal perception, memory, and at least a minimum standard of knowledge
- additional intelligence, skill, or knowledge actually possessed by the individual actor, and
- physical attributes of the actor
standard of care of a professional
conduct that the ordinary member of the profession would engage in under same or similar circumstances
negligence per se elements
an actor is negligent if
1. w/o excuse
2. the actor violates a statute
3. that is designed to protect against the type of accident the actors conduct causes
4. if the victim is w/in the class of persons the statute is designed to protect
negligence per se: role of judge/jury
- judge: decides whether a statute is applicable
- jury: decides whether the actor did, in fact, violate the statute and whether the negligence had a causal relation to the harm suffered
Perry factors
1) Is statute too obscure to put the public on notice?;
2) Does the statute impose liability without fault?;
3) Does applying the statute impose ruinous monetary liability disproportionate to the seriousness of defendant’s conduct?;
4) Did the injury result directly or indirectly from the violation of the statute
Negligence per se majority
most strict
- When the judge determines that a statute applies to the facts, an unexcused violation is “negligence per se.”
Negligence per se intermediate approach
Violation of a statute gives rise
to a “presumption” of negligence, which becomes negligence as a matter of law unless the presumption is rebutted
negligence per se minority
least strict
- Violation of a statute is only evidence of negligence, which the jury may accept or reject as it sees fit
direct evidence
- testimony by witness abt a matter w/in his personal knowledge
- proof of fact
- does not require drawing an inference from evidence
circumstantial evidence
- proof of one or more facts from which one can find another fact
- requires drawing an inference from evidence
res ipsa loquitur
- permissive inference that D must have been negligent
- court cannot find out what actually happened in the individual case
- typical: gravity cases, packaged food cases
res ipsa restatement
it may be inferred that harm suffered by the P is caused by the negligence of the D when
- the event is of a kind which ordinarily does not occur in the absence of negligence
- other responsible causes are eliminated by the evidence and
- the indicated negligence is w/in the scope of the D’s duty to the P
Res Ipsa elements
- Plaintiff must establish the availability of the permissive inference of negligence
- Plaintiff must establish that the negligence was attributable to the Defendant
- Plaintiff must establish that Plaintiff was not responsible for the injury
