Negligence

Negligence
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Terms in this set (14)
Negligence
failure to exercise reasonable care under the circumstance; can be an act (careless action) or omission (untaken precaution)
Elements
1) Duty 2) Breach 3) Causation (actual and proximate/legal) 4) Injury
Duty- Basic Standard
Reasonable Person: standard of care owed by the actor in every negligence case: what a reasonable, ordinary, prudent person would do under similar circumstances
Duty & Breach - Basic Standard
Duty creates the standard of care, and breach is failure to exercise the standard of care.
Differing Standards of Care (list)
Children, Insane/mentally disabled, Physical disabilities, Emergencies
Duty Standard- Children
- Acting as a reasonably prudent child of like age and development
-Permits subjective evaluation of child's unique mental/emotional development
-Exception: Children engaged in adult activities, standard of care of adult performing those activities.
-Note: Courts are unlikely to view a child under the age of 5 having the capacity to be negligent
Duty Standard- Insane/Mentally Disabled
- Act as a reasonable ordinary prudent SANE person, or as a person with average mental ability. Same standard of care of ROPP.
- Exception: bouts with insanity is sudden (however, doesn't apply if you knew there was a risk and you failed to take a reasonable precaution)
-Mental handicaps are not taken into consideration. (low IQ is no excuse) However, in cases where it may effect physical ability (ex- Alzheimer's) court may consider it.
Duty Standard- Physically Disabled
-Act as a reasonable ordinary prudent person with the same disability.
-Ex- blind person
Duty Standard- Emergencies
-Act as a reasonable ordinary prudent person in an emergency.
-Fundamental principle is not changed: ROPP under similar circumstances
Ways to Evaluate Duty (list)
Custom, Risk Utility Balance, Negligence Per Se, Res Ipsa Loquitur
Duty- CustomCustom can be used as persuasive evidence for what is reasonable under the circumstances. - Strong evidence is when almost all persons (80+%) have a certain standard or act a certain way -To prove- use expert opinionDuty- Risk Utility Balance- Balance the risk with benefit- there is some degree of acceptable risk, we have to determine at what point the risk becomes unreasonable -Hand Formula: B<PL (B= burden, P= probability of occurrence, L= Injury, PL= expected loss) - If burden is less than PL, there is a breach of dutyDuty- Negligence Per Se-Use of a non-tort statute as evidence of how a reasonable ordinary prudent person would act -Admissibility: statute must satisfy the following: 1) Plaintiff falls within the class of persons protected by the statute 2) Risk/Injury falls within the class of risk the statute was enacted to guard against -The evidentiary role can be either 1) mandatory 2) presumption or 3) mere evidence- statute as guideline for violation of tort law (usually used as mere evidence)Duty- Res Ipsa Loquitur- circumstantial evidence doctrine 'The thing speaks for itself' -Sole exception to the rule that you must state a specific negligent act- deals with situations where the fact a particular injury occurred may itself establish breach of duty. -Circumstantial evidence Used in the absence of direct evidence -Inference of Negligence: Trier of fact may be permitted to infer negligence -Plaintiff must show accident is type that would not normally occur unless someone was negligent, establish evidence connecting defendant to negligence, establish injury was not attributable to themselves. -If more than one person could have caused it, generally cannot use