Drake BLaw 60 - Chapter 3
Order by
21 terms
Terms | Definitions |
|---|---|
 Negligence | conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm (careless rather than intentional) |
| Elements of Negligence | Breach of Duty Proximate Cause Injury |
| Breach of Duty | Defendant did not meet standard or duty of care (state what a reasonable person would do) |
| Proximate Cause | Was the plaintiff's injury a result of the defendant's failure Requires that the conduct in fact caused harm to the plaintiff and that the harm was foreseeable |
| Reasonable Person | Someone who always acts carefully and with sound judgement.. A conscientious, even-tempered, and honest individual. |
| Duty | 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 established by statue | Established by legislation, a statue specifically tells us what the duty is and that there will be liability if they don't follow that duty |
| Negligence Per Se | 1) The statute or regulation clearly defines the required standard of conduct 2) The statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused 3) The plaintiff must be a member of the class of persons the statute or regulation was intended to protect |
| Trespasser | A person that enters or remains on the land of another without permission |
| Licensee | Obligated only to warn licensee of known, hidden, dangerous conditions; warn them of dangerous conditions that they are unlikely to discover on their own |
| Invitee | People invited to enter the property for a purpose connected with the possessor's business or people who are invited to enter property that is held open to the public Must protect an invitee against dangerous on-premises conditions that he knows about, or reasonably should discover, and that the invitee is unlikely to discover |
| Duty to Act | No one is required to aid another in peril Doesn't Apply if: 1) The relationship between the parties creates an obligation 2) One party has negligently placed the other in a position of potential harm 3) A person's conduct, whether tortious or innocent, has injured someone else and left that person helpless and in danger of further harm |
| "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 Danger" | Liability extends to those reasonably predicted injuries resulting from the wrongful act. |
| Damages in Negligence Claims | Compensatory Damages are main type Nominal generally not available Punitive Damages only allowed in EXTREME cases |
| Assumption of the RIsk | A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. |
| Types of Assumption of the Risk | Express - sign a waiver Implied - Voluntarily proceeds to encounter a known danger |
| Contributory Negligence | Plaintiff's negligent behavior helped to cause injury. Bars recovery by plaintiff in most states still using this concept |
| Comparative Negligence State | Plaintiff was negligent but can still recover to the extent of defendant's wrongful act. |
| Pure Comparative Negligence | Defendant's fault could be less than 50% when compared to the plaintiff, and the plaintiff can still recover |
| Modified Comparative Negligence | The plaintiff must be less than 50% at fault for the harm before he/she can recover |
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