Negligence Flashcards
Negligence
- A party is negligent if they fail to use reasonable care in a situation which they have a duty to, and as a result, cause harm to another
- Duty, breach, causation, damages
Negligence Elements
1) Duty: to avoid an unreasonable risk of harm
2) Breach: of the standard of care expected
3) Causation: of harm as a result of a breach of duty (‘but for’ cause - factual cause; proximate cause - legal cause)
4) Damages: actually occur
Considerations whether the person’s conduct lacks reasonable care:
1) the foreseeable likelihood that the person’s conduct will result in harm,
2) the foreseeable severity of any harm that may ensue, and
3) the burden of precautions to eliminate or reduce the risk of harm
Reasonable Person Standard
- People must act as a reasonable person of ordinary prudence under similar circumstances
- Standard is objective, not subjective
- Someone in the same situation, with the same knowledge, mental capacity, and physical ability
- Children: based on standard of the same age (except when partaking in adult activities)
Elderly: no difference, just on specific ailment that an older person has
Calculus of Risk
A more economic focus on negligence, focusing on minimizing the costs of litigation and risk prevention for all parties
*not all precautions against risk are required (only reasonable ones)
Learn at Hand Formula (Calculus of Risk)
If the burden of taking a given precaution is less than the probability of a type of injury, then an actor is negligent for failing to take the precaution
Burden (burden) < L ( loss, $ of injury) x P (Probability)
Industry Practice/Community Custom Rule
- An actor’s compliance with the custom of the community is evidence that the actor’s conduct is not negligent but does not preclude a finding of negligence
- An actor’s departure from the custom of the community in a way that increases risk is evidence of the actor’s negligence but does not require a finding of negligence
Locality Rule
- Members of a profession are judged by what other professionals in their area do, not what the professionals at large does
- LR prevents an undue burden on smaller businesses, hospitals, etc to obtain equipment and training to equal that of more highly-funded counterparts, but it is not a complete defense
Statutes and Regulations
- Create a private right of action on its own
- Allow for common law negligence suit, wherein the court adopts this standard as a replacement for the reasonable person standard
- A plaintiff/defendant can use a statute as evidence for negligence or lack of negligence
Negligence Per Se
An actor is negligence if, without excuse, the actor violates a statute that is designed to protect against the type of accident that actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect
License Exception
- Licenses are distinct in that ordinarily the immediate reason for the person’s lack of licensee is unrelated to the state’s general safety purpose.
- The lack of the license is not negligence per se on the part of the actor, nor is it evidence tending to show the actor’s negligence
Proof of Negligence (Learned Hand Formula)
- What was the activity engaged in and how dangerous is it?
- Could the defendant discern (foresee) the danger?
- Are there alternatives or precautions that could have been taken?
- Are those alternatives or precautions in regular use such that the defendant should know them?
Res Ipsa Loquitur (Prosser Standard)
- The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence
- It must be caused by an agency or instrumentality within the exclusive control of the defendant
- It must not have been due to any voluntary action or contribution on the party of the plaintiff
Exceptions to Objective Standard
- Physical disability
- Mental illness
- children (and elderly)
- Beginners & Experts
- Common Carriers
Beginners & Experts (Exception)
Beginners: held to standard of a reasonably skilled person in practice (policy - incentive/deterrence; society shouldn’t have to pay)
Experts: higher standard of care
