Ch. 8: Negligence and Strict Liability Flashcards
Negligence
conduct that falls below the standard established by law for the protection of
others against unreasonable risk of harm.
Duty Of care
A person is under a duty to all others at all times to exercise reasonable care for the safety of the others’ person and property; however, except in special circumstances, no one is under a general duty to (1) avoid the unintentional infliction of economic loss or (2) aid another in peril.
Reasonable person standard
Degree of care that a reasonable person would exercise under all the circumstances.
Reasonable person standard: Children
Must conform to conduct of a reasonable person of the same age, intelligence, and experience under all the circumstances.
Reasonable person standard: Physical disability
A disabled person’s conduct must conform to that of a reasonable person under the same disability.
Reasonable person standard: Mental disability
A mentally disabled person is held to the reasonable person standard of a reasonable person who is not mentally deficient.
Reasonable person standard: Superior skill or knowledge
If a person has skills or knowledge beyond those possessed by most others, these skills or knowledge or circumstances to be taken into account in determining whether the person has acted with reasonable care.
Reasonable person standard: Standard for emergencies
The reasonable person standard applies, but an unexpected emergency is considered part of the circumstances.
Reasonable person standard: Violation of statute
If the statute applies, the violation is negligence per se in most states.
second reinstatement
a land possessor owes the following duties: (1) not to injure trespassers
intentionally, (2) to warn licensees of known dangerous conditions licensees are unlikely to discover
for themselves, and (3) to exercise reasonable care to protect invitees against dangerous conditions land
possessor should know of but invitees are unlikely to discover.
third reinstatement
adopts a unitary duty of reasonable care to all entrants on the land except for
flagrant trespassers: a land possessor must use reasonable care to investigate and discover dangerous conditions and must use reasonable care to eliminate or improve those dangerous conditions that are known or should have been discovered by the exercise of reasonable care.
Res Ipsa Loquitur
“the thing speaks for itself”
Permits the jury to infer both negligent conduct and causation.
but-for test
The defendant’s conduct is a factual cause of the harm when the harm would not have occurred absent the conduct.
Scope of liability (Proximate Cause)
Liability is limited to those harms that result from the risks that made the defendant’s conduct tortious.
Foreseeability
Excludes liability for harms that were sufficiently unforeseeable at the time of the defendant’s tortious conduct that they were not among the risks that made the defendant negligent.
Superseding cause
An intervening act that relieves the defendant of liability.
Burden of proof
Plaintiff must prove that defendant’s negligent conduct caused harm to a legally protected interest.
Harm to legally protected interest
Courts determine which interests are protected from negligent interference.
Contributory negligence
Acting below the reasonable person standard.
Failure of a plaintiff to exercise reasonable care for his own protection, which in a few states prevents the plaintiff from recovering anything.
Comparative negligence
Damages are divided between the parties in proportion to their degree of negligence; applies in almost all states.
Assumption of risk
Plaintiff’s express consent to encounter a known danger; some states still apply implied assumption of the risk.
Strict liability
Liability for non-intentional and non-negligent conduct.
Abnormally dangerous activity
Strict liability is imposed for any activity that (1) creates a foreseeable and highly significant risk of harm and (1) is not one of common usage.
Activities giving rise to strict liability: Keeping of animals
Strict liability is imposed for wild animals and usually for trespassing domestic animals.
Defenses to strict liability: Contributory negligence
Is not a defense to strict liability.
Defenses to strict liability: Comparative negligence
Some states apply this doctrine to some strict liability cases.
Defenses to strict liability: Assumption of risk
Express assumption of risk is a defense to an action based upon strict liability; some states applied implied assumption of risk to strict liability cases.
Emergency
Sudden, unexpected event calling for immediate action.
Negligence per se
Conclusive on the issue of negligence (duty of care and breach)
Duty to act
A person is under a duty to all others at all times to exercise reasonable care for the safety of the others’ person and property; however, except in special circumstances, no one is required to aid another in peril.
Trespasser
Person who enters or remains on the land of another without permission or privilege to do so.
Licensee
Person privileged to enter or remain on the land by virtue of the consent of the lawful possessor.
Invitee
Person invited upon land as a member of the public or for a business purpose.
Factual cause
Liability for the negligent conduct of a defendant requires that his conduct in fact caused harm to the plaintiff.
Last clear chance
-Final opportunity to avoid an injury.
In certain jurisdictions, despite contributory negligence of the plaintiff if the defendant had a last clear chance to avoid injury but did not avail himself of such chance, the contributory negligence of the plaintiff does not bar his recovery of damages.
