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Torts
Negligence Part 1
| Term | Definition |
|---|---|
| Negligence: Definition | The failure to exercise reasonable care under the circumstances |
| Negligence: Elements of | 1) Duty on the part of the D to conform to a standard of conduct for the protection of P against an unreasonable risk of injury 2) Breach of that duty 3) Breach by D was actual and proximate cause of P's injury 4) Damage to the P's person or property |
| Standard of Reasonable Care: Definition | A reasonable person, where reasonable is on objective standard of ordinary prudence, in like circumstances |
| Standard of Reasonable Care: External Circumstances | Environment/situation/resources Custom - may be relevant but not dispositive Knowledge - if one holds himself as an expert Emergency a) 3rd Res: If an actor is confronted w/ unexpected emergency requiring response, must take into account b) Emergency |
| Standard of Reasonable Care: Personal Circumstances - Age | Minors judged by standards of reason for their age Exception: when involved in adult activity such as driving <4: Incapable of negligence b/c unreasonable 11: Presumed unreasonable but P can rebut this presumption >14: Presumed capable of negligence |
| Standard of Reasonable Care: Personal Circumstances - Physical Disabilities | Negligent if conduct does not conform to that of a reasonably careful person w/ same disability Exception: If the act has self-contained objective standards or licensing (like driving) |
| Standard of Reasonable Care: Personal Circumstances - Not Given Special Consideration | Insanity: Not a d to negligence Exception: When there is no notice or forewarning that person may be suddenly subject to such mental illness Individuals w/ low intellect, poor judgment, clumsiness Old age |
| Calculus of Risk: Consideration - Act Itself / Foreseeable Risks of Injury | Act Itself: D not negligent when jumped in front of train to save baby but would have been negligent if had done so to save property Foreseeability: Water company not responsible for cold temp breaking water mane b/c colder than normal year |
| Calculus of Risk: Consideration - Extent of Risks | How significant were risks? How many people will be affected? Likelihood the risks will occur? |
| Calculus of Risk: Consideration - Cost of Reducing Risk | Who's is the cheapest cost avoider? Calabresi a) Who has the most knowledge? b) Who can best spread the costs? |
| Calculus of Risk: Hand Formula | B < P L (Burden of taking added precautions) < (Probability of injury occurring)(Cost of the injury) Criticized by Calabresi for not taking into account cheapest cost avoider Would need a reverse Hand Formula for contributory negligence |
| Standard of Care: Heightened Standard | Common Carriers Airlines have higher standard of care Due to CCA and passengers total dependency for safety precautions B can be higher in Hand Formula but not too much higher than PL |
| Standard of Care: Custom - Generally | Sometimes used to specify certain acts "standards" Maj Rule: Custom not controlling. Can't use custom dvid for determine reasonableness 3rd Res: Compliance w/ custom is dvid that conduct isn't neg but doesn't stop finding of neg. Vice Versa |
| Standard of Care: Custom - Medical Malpractice | Standard: Doc must use degree of care & skill of avg. qualified practitioner Maj Rule: Abandon localized standard Exception: May count locality when it comes to equip and resources Duty to Disclose |
| Special Ways to Prove Negligence: Negligence Per Se - Def. and Res. | Def: Noncompliance w/ a statute is neg. per se Res: Neg. if, without excuse, actor violates statute that is designed to protect against type of accident actor's conduct causes & victim is within class of persons the statute is designed to protect |
| Special Ways to Prove Negligence: Negligence Per Se - Elements | Elements: 1) Statute protects against the type of harm that occurred 2) P is in class of persons protected by the statute |
| Feres Doctrine | SC ruled that the Federal Torts Claims Act barred military personnel from suing the military in both peacetime or wartime b/c everything that they do has to do w/ their combat function Demonstrates that liability forces internalization of risk |
| Special Ways to Prove Negligence: Res Ipsa Loquitur | 1) Event must be of a kind which doesn't normally occur absent someone's negligence 2) It must be caused by an agency within exclusive control of the D 3) It must not have been due to any voluntary action or contribution on part of P |
Created by:
corey.combs
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