Negligence #1

Question 1

Negligence

Answer 1

conduct which falls below the standard established by law for the protection of others against unreasonable risk of Harm

Question 2

Prima Facie Elements (Negligence)

Answer 2

Duty
Breach of Duty
Causation
     - Cause-in-Fact
     - Proximate Cause
Damages (INJURY) 
     - Damages are different from Injury.

Question 3

Duty

Answer 3

1) a legal obligation owed by the defendant to a Plaintiff to
2) Act in a Certain Manner (standard of care)
- If a risk of injury is foreseeable, a duty then exists to use reasonable care to avoid the injury to another.

Deciding whether a DUTY exists = Matter of Law (Court’s decision)

Question 4

Standard of Care (SOC)

Answer 4

• Required Level of Expected Conduct

e. g. “reasonable care” - how an ordinarily reasonable person acts under the circumstances.

Question 5

ORPP

Answer 5

Ordinarily Reasonably Prudent Person would act under the circumstances.

Question 6

Nonfeasance

Answer 6

• Failure to Intervene
  Basic Rule: No duty of care applies
• e.g. Motorist sees baby enter path of Train and does nothing.
  Subject to Exceptions (Special Relationship)- Baker v. Fenneman & Brown Properties, LLC. - Premises Liability

Question 7

Premises Liability (Status of entrant)

Answer 7

Invitee
Licensee
Trespasser

Question 8

Invitee

Answer 8

Person who enters or remains on premises
Express or implied invitation
Business purpose or other public purpose
Standard of care:
Duty of reasonable care to maintain premises
- affirmative steps to discover dangers
- possessor knows / should know of danger, duty to fix or warn invitee.

Question 9

Licensee

Answer 9

person enters or remains with permission / consent of occupier
Standard of care:
warn of natural / artificial dangers that licensee does not know about, and would not be expected to discover.

Question 10

Trespassers

Answer 10

enters on land without permission 
Standard of Care: 
Duty to refrain from willful harm. 
Children: duty of reasonable care 
Adults: duty to warn.

Question 11

Invitation

Answer 11

owner of the premises and occupant receive mutual benefits.

Question 12

Breach of Duty

Answer 12

Behavior that falls short of the Standard of Care.

Question 13

Causation

Answer 13

1) Cause-in-fact (but/for Cause)
2) Is it fair to hold D liable for injuries to P. (proximate Cause)
- Was the injury foreseeable?
- Was the injury a chance occurrence?

Question 14

INJURY

Answer 14

1) Physical Harm
a. Bodily Harms
b. Damage to Physical Property
2) Loss of Wealth
3) Emotional Distress

Most Modern Negligence Claims = Physical Harms (bodily harm or property damage)

Physical Harms = Clear Examples of INJURY

Question 15

MISFEASANCE

Answer 15

• Affirmative act creates unreasonable risk of harm
• general duty of care applies (ORPP)
• Mussivand Case

Question 16

QUALIFIED DUTY OF CARE.

Answer 16

Qualified Duty = Limited Duty of Care

3 Categories of “qualified” or limited Duty:
1) affirmative duty / duty-to-Rescue - unreasonably failed to provide assistance or protection

2) premises liability - permitted or maintained unreasonably dangerous conditions on a property in possession.
3) Pure Economic Loss - acted without reasonable care for Plaintiff’s economic prospects.

• Relationship Between Parties
• Duty Issue is “IN PLAY” - Plaintiff must prove why D was obligated / had a DUTY.

Question 17

When does a Duty Exist?

Answer 17

Factors to Consider when considering whether a Duty exists:

• Foreseeabilty of harm to the P
• degree of certainty that p suffered injury
• closeness of connection between the d’s conduct and the injury to the P.

Question 18

UNQUALIFIED DUTY

Answer 18

DUTY OF REASONABLE CARE FOR PERSON AND PROPERTY