II.A. Negligence - DoC, SoC and Breach

Question 1

What is the general rule for negligence?

Answer 1

Plaintiff can establish a claim for negligence if they can show (1) that the D owed duty of care, (2) that D breached the duty of care and (3) which caused the damages.

Question 2

What is the first rule, regarding duty of care?

Answer 2

A duty of care is owed to all foreseeable plaintiffs. Majority view = foreseeable if in “zone of danger” and minority view = “everyone is foreseeable.”

Question 3

What is the second rule, regarding standard of care?

Answer 3

The default standard of care is that of a reasonably prudent person under similar circumstances. But in certain situations, a higher standard of care will be applicable.

Template: Here the standard of care is X which requires Y. H, [facts]. Thus, met/failure to conform to applicable SoC.

Question 4

What are the five standards of care to look out for?

Answer 4

1. Child (including performing adult activities)
2. Superior knowledge, skill, or experience
3. Negligence per se
4. Res ispa loquitor
5. Real property owners and occupiers
6. Misc. - emergency

Question 5

CHIILD: standard of care?

Answer 5

<4 “tender years” doctrine, incapable of negligence

4-18 reasonable person of that age (unless engaged in an “adult activity” = the reasonable adult standard)

Question 6

SUPERIOR KNOWLEDGE standard of care?

Answer 6

RP with higher knowledge, skill or experience

Professionals - + apply standard of care of that type of profession (accountant, lawyer) in good standing in the relevant community (vs. for doctors, national standard, only to patients)

Question 7

NEGLIGENCE PER SE standard of care?

Answer 7

If can show D’s unexcused violation of safety statute establishes breach if (1) P in class protected by statute and (2) suffers injury of a type protected by statute and (3) the plaintiff received the injury that the statute aimed to prevent - establishes duty and breach (but still must prove causation and harm).

Question 8

RES IPSA LOQUITOR standard of care?

Answer 8

Breach established when (1) no direct evidence that D’s conduct caused harm but (2) instrument within D’s exclusive control and (3) harm unlikely absent negligence. Thus, P treated as producing sufficient evidence of causation.

Question 9

MISC. standards of care?

Answer 9

Emergency - RP confronted with same emergency.

Physical disability - RP with same disability (not for mental characteristics or intoxication)

Question 10

hat is a breach?

Answer 10

Failure to conform conduct to applicable standard of care. Note that Negligence Per Se and es Ipsa Loquitur should be discussed here.