Module 8 Flashcards
A violation of a criminal statute will be excused by most jurisdictions under what circumstances?
When compliance with the statute would’ve required greater danger than the violation
Doctrine of negligence per se applies to what types of statutes?
Statutes that the clear context to be unlawful, but are silent as to civil liability
Before a statute can be used to provide the standard of care under negligence per se theory, the judge must determine what?
The statute was designed to address the type of harm the plaintiff suffered
What do most jurisdictions say the standard of care for children is in statutory violations and negligence per se cases?
Unless the child was engaged in an adult activity, the child standard of care should be applied
What is duty of care?
The measure of the duty owed by the defendant to the so (reasonable person under the same or similar circumstances)
What is breach of duty?
Defendants failure to meet the standard of care/unreasonable conduct by the defendant. Defendant’s failure to act as a reasonable person would have acted under the same/similar circumstances
Who decides whether the defendant has breached a duty?
Jury
What is negligence?
When defendant engages an unreasonable risk creation. Where the defendant creates risks that a reasonable person would not.
What is the Learned Hand formula of risk calculation?
B is less than probability times injury
What are the three things that the learned hand formula takes into consideration?
A) likelihood that the conduct will injure others
B) seriousness of the injury
C) The interest which the person must sacrifice to avoid the risk
What does each element of the learned hand formula stand for?
P- probability (likelihood of injury)
L - injury (seriousness of the injury)
B - burden (interest sacrificed)
When has a defendant acted unreasonably under the learned hand formula?
When the burden of avoiding the harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur
How is probability different from foreseeability?
Probability measures how foreseeable the harm causing event was
If there’s a very small likelihood of harm what does that mean for breach of duty?
It is doubtful that the defendant breached a duty ie) golf club in the yard case
It is important to remember about the likely harm?
It is not the actual harm that occurred, it is the likely harm (just sometimes way more or way less harm actually occurs then is expected)
If that potential injury is very serious how does that affect the probability of harm needed for liability?
Makes it much smaller
Things are considered when you think about burden of avoidance?
Costs associated with avoiding the harm, alternatives and their feasibility, the inconvenience to those involved, and the extent to which society values the relevant activity
If an activity has great social value attached to it, what does that do to the burden of avoidance?
Certain activities are not banned because of the great value attached to it, and the same goes for negligence. Ie) driving
If there was a reasonable means to make an activity safer, what does that do to your liability?
Means a liability will probably be imposed
If a safer alternative is really expensive, what is your obligation?
If the burden is excessive to the entire industry, you may not have to take that other alternative. But if it is just excessive to you as an individual because of a bad financial situation, not using the alternative will result in negligence
What is custom?
A well-defined and consistent way of performing a certain activity, often among the particular trade/industry
