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1

NEGLIGENCE

A tort grounded in a person’s failure to conform his/her conduct to the standard of care established by law

2

Elements of Negligence

DUTY
BREACH
CAUSATION
DAMAGES

3

Negligence- Duty

A legally recognized relationship between the parties that requires D to act in a certain way

4

Palsgraf v. LIRR

-There can be no liability for negligence unless –
D owes a duty to the P
-The existence of a duty depends on –
A foreseeable risk of harm &
A foreseeable plaintiff

5

Duty Principle

In general, a duty arises when D creates:
a foreseeable risk of harm
to a foreseeable plaintiff

6

Foreseeable Risk Requirement

- “The risk reasonably to be perceived defines the duty to be obeyed”
- “It is the risk to another or to others within the range of apprehension”
- D owes a duty only to persons w/in the zone of danger

7

Palsgraf Dissent

D owes to “the world at large” the duty of refraining from those acts that may unreasonably threaten the safety of others

“Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured.”

8

STANDARD OF CARE

The “standard of care” for negligence is –

the level of conduct demanded by law to avoid liability

9

REASONABLY PRUDENT PERSON
STANDARD OF CARE

D is held to the standard of care of

- a reasonably prudent person (RPP)
- in the same or similar circumstances

10

Vaughan v. Menlove

In determining breach –

D’s conduct is to be evaluated using an objective “man of ordinary prudence" standard

11

Intelligence & Judgment Qualities & the Reasonable Person Standard

D’s Low Intelligence or knowledge
-Not taken into account (e.g., hay rick case)
-Objective RPP std applies
D’s Superior Intelligence or knowledge
-Often taken into account
-Despite seeming inconsistency

12

Restatement 2nd Section 289
Persons with inferior qualities

The individual who is “habitually wool- gathering, inattentive, absent minded, forgetful, ignorant or inexperienced, slow- witted, … or a fool” must:

“conform to the standard of the society in which he lives” or

“if he cannot conform … must still make good the damage he does”

13

Restatement 2nd Section 289
superior qualities of actor

“If the actor has in fact more than the minimum of these qualities,* he is required to exercise the superior qualities he has in a manner reasonable under the circumstances.”.

“The standard becomes, in other words, that of a reasonable man with such superior attributes.”
_________
* Attention, perception, memory, knowledge, intelligence, & judgement

14

REASONABLE PRUDENT
PERSON

The RPP is EXPECTED to –

-notice the obvious & apparent
-know matters of common knowledge
-understand what community understands

The RPP is …

NOT expected nor required to be perfect or infallible

15

Delair v. McAdoo

The RPP Standard
-The Reasonable Person notices what is apparent
-The Reasonable Person knows of common (driving) hazards
-The RPP knows
of matters of
common knowledge

16

Emergency Doctrine

*Cordas v. Peerless Transportation

In an emergency, the SOC is that of a RPP acting under emergency circumstances

[Unless, D’s own risky conduct created the emergency]

17

Areas of flexibility in the RPP Standard

Superior intelligence/knowledge
Physical characteristics

18

*Flexibility
Roberts v. Louisiana

A blind man “must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.”

19

*Flexibility
RPP Standard of Care Physical Traits & Disabilities

-Persons with physical disabilities held to standard of a RPP with the same physical disability acting in similar circumstances

20

Breunig v. American
Fam. Ins. Co

D’s mental illness usually is not taken into account in evaluating the reasonableness of D’s conduct

[Persons w/ mental disabilities are not allowed a standard of a RPP w/ the same mental disability]

21

SUDDEN ONSET EXCEPTION*

“We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder …”
*Minority Exception

22

STANDARD OF CARE

REASONABLY PRUDENT PERSON
-D held to the standard of care of
-a reasonably prudent person in the same or similar circumstances

23

AREAS OF FLEXIBILITY in the reasonable prudent person standard

D’s superior intellig., experience, or skill
D’s physical characteristics

But, courts will not consider …

D’s low intillig., experience, or skill
D’s mental illness or disabilities

24

Voluntary Drug/Alcohol Abuse
& the RPP Std of Care

D’s abuse of drugs or alcohol is not a circumstance taken into account by RPP standard of care

[The applicable standard of care is not
whether D was driving as well as a RPP
high on drugs!!!]

25

Alternative Standards of Care

Children
Professionals
Land Possessors

26

Child Standard of Care

Children are held to the std of

A reasonable child of like age, intelligence & experience

Under similar circumstances
Exceptions:
Inherently Dangerous or Adult Activity
Rule of 5

27

Restatement Exception for child std. of care

Child standard of care does not apply when child engages in …
an activity normally undertaken only by adults (adult activity) &
the activity normally requires adult qualifications

28

Professional
Standard of Care

The professional D must exercise …

the knowledge & skill of an ordinary member of profession in good standing
Under similar circumstances

29

LP DUTY TO PERSONS
OFF THE PREMISES

Generally Land possessors owe –
NO DUTY to persons outside the
premises for natural conditions
on their land

30

Taylor v. Olsen

Tree Exception to Natural Conditions Rule:
[Duty] Landholder owes a duty to offsite P for risks posed by trees on D’s premises
[SOC] Duty owed depends on all of the relevant circumstances