Negligence Flashcards
What are the prima facie elements of negligence?
- duty (to conform to specific std. of conduct)
- breach
- cause
- damages
When confronted with a negligence question, what do we ask re: duty?
- was the PL foreseeable?
2. if so, what is the applicable std of care?
Who is a foreseeable PL?
someone in the zone of danger or
anyone who suffers injuries proximately caused by D’s negligence
What is the rule re: rescuers and foreseeability?
rescuer is a foreseeable PL where D neg. put himself or a third person in peril (danger invites rescue)
** firefighters and police may be barred from recovering for injuries caused by risk of rescue
Is there a duty of care owed to a viable fetus?
yes
What is the basic standard of care?
reasonably prudent person
objective std - one’s conduct measured against what the average person would do
Do D’s mental deficiencies/inexperience matter when we assess the care of D?
no (low intelligence is no excuse)
but “reasonable person” is considered to have same physical characteristics of D if those phy. ch. are relevant to claim
What if a D has knowledge/experience superior to that of avg. person?
required to exercise that experience
What are the “particular” standards of conduct?
- professionals
- children
- common carriers and innkeepers
- automobile driver to guest
- bailment duties
- emergency situtations
What is the standard of care for children?
held to the std. of a child of like age, education, intelligence, and experience (subjective test)
children engaged in potentially dangerous adult activities may be required to conform to an adult std. of care
What is the standard of care for common carriers?
very high - liable for slight negligence (PL must passenger or guest)
What is the standard of care in emergency situations?
D must act as reasonably prudent person would under the same emergency conditions
emergency is not to be considered if it is D’s own making
What duty is owed to an undiscovered trespasser
art. conditions, natural, and active: no duty
What duty is owed to discovered or anticipated trespasser?
artificial conditions: duty to warn of or make safe known conditions if nonobvious and highly dangerous
no duty for natural conditions
duty of reasonable care for active operations
What duty is owed to child (if presence on land foreseeable - attractive nuisance doctrine)?
artificial: duty to warn of or make safe if foreseeable risk to child outweighs expense of eliminating danger
natural conditions: same as artificial (but balancing test less likely to be met)
active: duty of reasonable care
