12) Neg - SOC + Breach Flashcards
SOC: def
measures duty owed to P
breach: def
failure to meet SOC
SOC: kinds
1) RPP
2) children
3) stautory neg/ neg per se
4) professionals
SOC: default
RPP
RPP: def
reasonably prudent person under the same or similar circumstances
RPP: rule
objective standard of care – measure D’s conduct against external (mythical) RPP under the same circs
RPP: circs NOT considered
mental ability insanity reflexes experience etc.
RPP: circs YES consider
1) physical condition
2) emergencies not of D’s own making
RPP: circs to consider: result
jury will have to decide if P acted as a reasonable (blind person) reasonable (person in an emergency, etc).
not a free pass to liability
RPP: Breach: def
failure to act as a RPP
RPP: breach: factors
1) probability of harm
2) likely magnitude of harm
3) burden on D of avoiding harm
(balance 1+2 against 3)
RPP: breach: custom: rule
P’s proof of D’s deviation from custom is (strong, but not determinative) evidence of D’s breach of duty
similarly, D’s evidnece of compliance with custom may be evidence of no breach
children: def
under 18
children: majority rule
child-D SOC: did child behave as a reasonable child of same age, experience, intelligence (more subjective than adults)
children: minority rule
under 6: conclusive presumption incapable of neg
7-13: rebuttably presumed not neg
14+: rebuttably presumed capable of neg
children: exception
if child engaging in inherently dangerous adult activity, then SOC is objective RPP (adult) under similar circs
statutory negligence: rule
statute that provides for civil liability (a statute about a tort) supersedes CL
negligence per se: rule
if there’s a law (not about torts) + judge decides it applies, then
the statute may set the SOC
neg per se: judge decides if it applies: elements
need both
1) is P member of the class leg intended to protect w this statute
2) is P’s harm the type of harm leg intended to protect
neg per se: result: majority
unexcused violation of statute conclusively establishes that D breached his duty to P (the q. is just was statute violated)
neg per se: result: minority
violating the statute either:
1) raises rebuttable presumption that duty breached OR
2) prima facie evidence that duty breached
neg per se: exceptions
statute DOES NOT APPLY if:
1) excused violation of statute
2) licensing statute (ex. dl)
neg per se: exceptions: excused violation: exs
1) emergency not of D’s own making
2) more dangerous to comply than not
3) sudden incapacity (sz)
neg per se: exceptions: result
if statute dn apply, then will not be used to set standard of care –> proceed w nl RPP SOC
