Negligence Flashcards
Negligence Overview
(1) Did D owe the claimant a duty of care?
- Established duties
- Novel duties
(2) If so, did D breach that duty of care?
- standard of care expected of a reasonable person.
(3) If so, did that breach cause damage to the claimant?
- But-for test
- Intervening factors
- Damage was reasonably foreseeable
(4) If so, does a defense apply?
When does a novel duty arise?
(1) The claimant must be a foreseeable victim
(2) Proximity between the parties
(3) Fair, just, and reasonable to impose a duty
If a failure/omission to act a breach of the duty of care?
Generally, no. One does not have a legal duty to act UNLESS:
- Special relationship between the parties
- D exercises control over claimant/a third party
- Rescuers must not make the situation worse
How to assess whether the defendant’s actions fell below the requisite standard of care
Magnitude of Risk v. Practicability of Precautions
MoR:
- likelihood of harm vs. seriousness of harm
PoP:
- Social utility considered (e.g., can take fewer safety precautions when acting in an emergency)
What does Res Ipsa Loquitur do
Allows the court to infer a breach of duty from the circumstances of an accident.
This is a rebuttable presumption.
Elements for Res Ipsa Loquitur to apply
(1) Absence of explanation for an incident
(2) Cause of the accident was under the control of D
(3) Accident would not have normally happened if proper care had been taken.
What are the three stages in establishing causation of damage?
(1) Causation in Fact
- But-for test, or
- Material Contribution (different causes acting together)
(2) No intervening acts
(3) Damage was reasonably foreseeable
What is the standard of proof for causation?
Balance of probabilities (more likely than not)
Contributory Negligence v. Claimant’s Intervening Act
If CN: C’s damages reduced by C failed to take reasonable care for their own safety
If C’s Intervening Act breaks the chain of causation, they cannot recover for subsequent injury.
Basic Rule for Remoteness of Damage
Was the claimant’s damage a REASONABLY FORESEEABLE result of the defendant’s negligence
Exceptions to the basic rule for Remoteness of Damage
Egg Shell Skull Rule
- D takes victim as they find them
Similar in Type Rule
- D still liable if the type of harm was reasonably foreseeable, but the manner in which it happened was not.
What are the defenses to negligence?
Contributory Negligence
Voluntary Assumption of Risk
Exclusion of Liability
Illegality
When does the defense of Voluntary Assumption of Risk apply
(1) Claimant was fully aware of the risk
(2) Claimant fully and voluntarily assumed the risk
NOTE: Does not apply to passengers in road traffic accidents
What are the restrictions on excluding liability for negligence?
- Cannot exclude liability for death or PI
- All other exclusions must be reasonable and fair
