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Flashcards in Negligence Deck (26)
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Definition of Negligence

A person acts negligently if the person does not exercise reasonable care under all circumstances


4 elements of negligence

1 - duty - standard of care - standard is a reasonably prudent person
2 - breach (heart of negligence) - did D breach his duty/deviate from the standard of care?
3 - causation - did the breach of duty cause damages?
4 - damages - there must be truly actual compensatory damages for there to be negligence


what reasonable precautions does an individual have a responsibility to take when dealing with dangerous instruments such that the risk of injury posed by the instrument does not outweigh its utility?

1 - purpose for which they are used
2 - the probability of injury
3 - the precautions necessary to prevent such injury
4 - the relations such precautions bear to the beneficial use of the premises


L x P > B

Injury x Probability is greater than burden - negligent


The standard of care is...

the reasonably prudent person standard


is the standard of care objective or subjective?



Standard of Care and physical disabilities

If someone has a physical disability, you insert the physical disability into the standard of care


Standard of Care and mental disabilities

If someone has a mental disability, you do NOT add this into the standard of care


Standard of Care for drivers

Drivers have a duty to investigate and maintain their vehicles that may become dangerous when their dangerous condition could be found through a reasonable inspection


Standard of Care for new drivers v. old drivers

Held to the same standard!


Standard of Care for individuals with superior skills

If P finds out that D is a specialist and for example, they are doing a medical procedure, then they would be held to a higher standard if it turns out that the doctor did not disclose an important illness or some factor that would affect a surgery


Custom and Standard of Care

P may offer evidence of custom, common usage, and practice in making his case for negligence

Universality - the practice does not need to be universal but it should be fairly well defined


Emergency situations and SoC

D only needs to act like a reasonably prudent person confronted with the same emergency


Child involved in an inherently dangerous activity and SOC

A child may be held to a higher adult standard of care when the child is engaged in an inherently dangerous activity for which the adult standard should apply


SOC for minors with superior intelligence

subjective test - if a minor D is more intelligent or less intelligent, they will be held to a degree of care that similarly intelligent minor Ds would exercise


Definition of Malpractice

negligence done by a professional acting in the scope of his profession


SoC for Professionals - average?

No, because a below average professional could still provide a minimally prudent standard of care


Basic Principle of SoC for professionals

reasonable prudent person takes on the profession of the actor and an objective standard is applied


SoC for lawyers

A lawyer is not liable for a mere error in judgment if they use reasonable care and diligence that other lawyers would use


national standards v. local standards

When there is a nationally certified professional, they have to comply with national standards not local standards

(architects, lawyers, doctors)


Rule statement for negligence

An action for negligence requires the plaintiff to prove to a jury by a preponderance of evidence that the defendant had a duty, he breached that duty, and that the breach both actually and proximately caused the plaintiff’s actual damages


Zone 1 for Negligence

Case starts here. If P does not produce any evidence in support of her prima facie case


Zone 2 for Negligence

If P comes forward with enough evidence in support of her prima facie case - case will go to jury


Zone 3 for Negligence

P's case is so strong that unless D comes forward with rebutting evidence, the court will have to order a directed verdict in P's favor


RIL - Res Ipsa Loquitur

Method to get a case in front of a jury when there isn't a lot of evidence


Elements of RIL

1 - thing was in exclusive possession and control of D before accident

2 - the event generally doesn't occur without negligence

3 - P wasn't negligence and didn't have constructive notice