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Torts > Negligence > Flashcards

Flashcards in Negligence Deck (7)
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1

Elements

1. Duty
2. Breach
3. Cause in Fact
4. Proximate Cause
5. Damages

2

Reasonable care standard. How to determine?

1. BPL
2. "Reasonable person" in those circumstances
3. Industry standard / custom
4. Emergency (reasonable given that emergency?)

3

Reasonable Person standard. What are the relevant characteristics of the "reasonable person?"

Objective:
1. Normal intelligence is expected.
- Insanity not a defense
- Below normal intelligence not a defense

Subjective:
2. Additional intelligence, skill, or knowledge of the actor
3. Physical attributes/handicaps of the actor
- Intoxication not a defense
4. Age

EXCEPTION: Child

4

Reasonable Person exception: Child

What are the relevant characteristics of the "reasonable" child?

1. Age
- Multiples of 7: Below 7 incapable of neg. 7-14 presumed incapable, but could be rebutted. 14+ presumed capable but could be rebutted by D.

2. Intelligence and experience - mitigating factors for children.

EXCEPTION: Adult activity

5

Negligence per se
(violation of statute)

What is required to constitute breach?

1. Must be a statute (clear)
2. D must violate statute
3. Harm suffered must match harm the statute is aimed at preventing
4. Plaintiff must be in class of persons protected by the statute

* EXCUSES:
- Infancy, impossible/unreasonable to comply, safer not to comply)

* Causal connection necessary

6

Negligence per se
(violation of statute)

Absolute liability as a matter of law OR "just some evidence" of liability?

Majority view: Absolute liability
- Martin v. Herzog (failure to turn on lights negligence as matter of law regarding accident)

Minority view: Not conclusive of neg as matter of law

7

Res ipsa loquiter
(the thing speaks for itself)
- No direct evidence of negligence but inference can be made based on indirect evidence.

Elements?

1. Accident must be something that doesn't normally happen UNLESS negligence

2. Accident must be the fault of something within the exclusive control/responsibility of the defendant
- Non-delegable duty

3. Accident must not be due to any voluntary action on the part of the plaintiff