- conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm
Elements of Negligence
Breach of Duty/Proximate Cause/Injury
Breach of Duty
Tortfeasor did not meet standard or duty
Did the breach of duty "cause" the injury?
standard of conduct established for protection of others; what the reasonable prudent person would have done under like circumstances.
If child - like age, intelligence and experience
Disability - person with like disability
Superior knowledge or skill - commensurate with peers
Negligence Per Se
Violation of statute is presumed breach of duty
No one has a duty to give aid
once begun, reasonable care is required. Liability may result if aid is negligent/dangerous/causes more harm. Exception - see Good Samaritan Statutes.
Duty to others on land
Trespassers: do not place obstacles in their path if known, exercise reasonable care for safety.
Licensees: privileged to enter, duty to reasonable care.
Invitees: person invited, keep safe from known or anticipated danger.
Res ipsa loquitur
Defendant has exclusive control of the situation and is negligent.
"but for" rule
A person's conduct is the cause of an event if the event would not have occurred BUT FOR the negligent conduct.
zone of forseeable risk
Liability extends to those reasonably predicted injuries resulting from the wrongful act.
injury, property damage, emotional distress or financial loss.
plaintiff's negligent behavior helped to cause injury. Bars recovery by plaintiff in most states still using this concept
Last Clear Chance Doctrine
defendant had opportunity to avoid injury to plaintiff but did not take opportunity to do so
plaintiff was negligent but can still recover to the extent of defendant's wrongful act.
Assumption of the Risk
plaintiff voluntarily and knowingly assumed risk of harm. Plaintiff cannot recover.
The courts impose strict liability for harm resulting from extraordinary, unusual, abnormal, or exceptional activities as determined in light of the place, time, and manner in which the activity was conducted.
Strict Liability Factors
1.Existence of a high degree of risk of some harm to the person, land or chattels of others.2.Likelihood that the harm that results from it will be great.
3.Inability to eliminate the risk by the exercise of reasonable care.4.Extent to which the activity is not a matter of common usage.5.Inappropriateness of the activity of the place where it is carried on.6.Extent to which its value to the community is outweighed by its dangerous attributes.
Liability for animals
- those who possess animals do so at their own peril and must protect against the harm those animals may cause to people and property. Keepers of animals are generally liable for their trespass.