Lecture 4 Flashcards
negligence
the failure to exercise the care that a reasonably prudent person would exercise in like circumstances, resulting in harm
4 Elements of Negligence
- Owe a duty
- Breach a duty
- Harm
- The breach of duty is the proximate cause of the harm
who has to prove the elements of negligence?
the plaintiff
which two elements of negligence prove reasonableness?
owe a duty and breach the duty
what is considered reasonable behavior?
common or ordinary
you can’t talk about negligence without discussing what?
foreseeability
Hand’s rule
cost to prevent harm > (probability of loss x size of loss)
it is not reasonable to fix (you won’t fix it)
why modify negligence rules?
it’s either too easy or too difficult for the plaintiff to win
defenses against liability
contributory negligence
comparative negligence
assumption of risk
contributory negligence
plaintiff gets nothing if they are at all found responsible (Even if it’s like 1%)
comparative negligence
plaintiff gets paid the % not at fault and damages (most commonly used)
assumption of risk
the plaintiff knew the situation was dangerous (defense pays nothing if they can prove this)
punitive damages
not intended to compensate the harm that’s occurred but rather to punish- benefit to society to punish the bad guy
what’s an incentive to let the plaintiff keep punitive damages?
incentive to bring on litigation
which defense against liability applies?
they will try to use all of them and see which one sticks (or based on state rules)
relaxation of the burden of proof
joint and several liability
vicarious liability
res ipsa loquitur
strict liability
joint and several liability
- more than one defendant
- unreasonable behavior but unable to pinpoint which behavior was the proximate cause of the harm
- one defendant could potentially pay the full amount
vicarious liability
- one party is liable for someone else’s behavior
- employer/employee relations
res ipsa loquitur
“the thing speaks for itself”
-burden of proof shifts to the defendant
strict liability
- eliminate need to show unreasonableness
- harm/breach - proximate cause of harm
- must show a condition
