CH10B- Negligence Flashcards
Negligence
The elements of any negligence case are as
follows:
– Duty
– Breach
– Causation
* Causation in fact
* Proximate cause
– Damages
Duty
The central concept behind duty is that for
every situation, there is a standard of care that
is reasonable to expect. That is, there is a
certain level of conduct that is “normal” and
any conduct that is not at least as careful as
normal conduct is a breach of the duty of care.
- The appropriate standard of conduct is that to
which a reasonable person would conform.
– Reasonable persons are careful, conscientious, prudent,
honest, and even tempered.
– Reasonable persons act differently in different situations,
and conduct is judged on a case-by-case basis.
Special duty rules
Landowners have a duty to make their land
safe for those who come on the premises,
including trespassers under some
circumstances.
Professionals have a duty to meet the
standards of their profession when acting in
their professional capacity.
Duty of rescue
There is generally no duty to rescue someone
in peril, even if you could easily do so
without any personal risk, except under two
conditions:
1. Your conduct placed the person in peril in the
first place, or
2. You begin to rescue and then give up (the theory
here being that by beginning the rescue, you
might discourage others from helping.
Breach
Whenever conduct does not meet the
requisite standard of care, there is a breach
of that duty.
* Breaches that cause damages are generally
actionable.
Causation
When determining whether or not an injury
was caused by some conduct we use a two
part test:
1. Causation in fact: The injury would not have
occurred but for the defendant’s conduct, and
2. Proximate cause: The connection between the
conduct and the injury was close enough to justify
an imposition of liability.
* Often this question is resolved by whether the
injury was foreseeable
Damages
In all civil cases, we have the basic rule that without
measurable damages, there can be no more than a
nominal award.
* In negligence cases, we take the basic rule one step
further:
– If there are no damages, there is no cause of action
period. Nominal damages are not available.
– Because negligence is so rampant, unless there are
damages, there is no case. We don’t allow suits against
people for carelessness unless that carelessness results in
actual harm.
Defense to negligence
Assumption of the Risk
– Plaintiff was aware of the risk and voluntarily
chose to expose her/himself to it.
- Superseding/Intervening Cause
– An unforeseeable event intervened between
defendant’s negligence and ultimate damage. - Contributory/Comparative Negligence
– Plaintiff was partially negligent herself - Reduces recovery in most states
- Bars recovery in four states (NC, MD, AL, VA) and
Washington, DC)
