Negligence

Question 1

Elements

Answer 1

1. Duty
2. Breach
3. Cause in Fact
4. Proximate Cause
5. Damages

Question 2

Reasonable care standard. How to determine?

Answer 2

1. BPL
2. “Reasonable person” in those circumstances
3. Industry standard / custom
4. Emergency (reasonable given that emergency?)

Question 3

Reasonable Person standard. What are the relevant characteristics of the “reasonable person?”

Answer 3

Objective:

1. Normal intelligence is expected.
   - Insanity not a defense
   - Below normal intelligence not a defense

Subjective:

2. Additional intelligence, skill, or knowledge of the actor
3. Physical attributes/handicaps of the actor
   - Intoxication not a defense
4. Age

EXCEPTION: Child

Question 4

Reasonable Person exception: Child

What are the relevant characteristics of the “reasonable” child?

Answer 4

1. Age
   - Multiples of 7: Below 7 incapable of neg. 7-14 presumed incapable, but could be rebutted. 14+ presumed capable but could be rebutted by D.
2. Intelligence and experience - mitigating factors for children.

EXCEPTION: Adult activity

Question 5

Negligence per se
(violation of statute)

What is required to constitute breach?

Answer 5

1. Must be a statute (clear)
2. D must violate statute
3. Harm suffered must match harm the statute is aimed at preventing
4. Plaintiff must be in class of persons protected by the statute

• EXCUSES:
• Infancy, impossible/unreasonable to comply, safer not to comply)
• Causal connection necessary

Question 6

Negligence per se
(violation of statute)

Absolute liability as a matter of law OR “just some evidence” of liability?

Answer 6

Majority view: Absolute liability
- Martin v. Herzog (failure to turn on lights negligence as matter of law regarding accident)

Minority view: Not conclusive of neg as matter of law

Question 7

Res ipsa loquiter
(the thing speaks for itself)
- No direct evidence of negligence but inference can be made based on indirect evidence.

Elements?

Answer 7

1. Accident must be something that doesn’t normally happen UNLESS negligence
2. Accident must be the fault of something within the exclusive control/responsibility of the defendant
   - Non-delegable duty
3. Accident must not be due to any voluntary action on the part of the plaintiff