Negligence Flashcards
What is the general principle of our laws (O.W. Holmes)
Loss from accident must lie where it falls
Legal elements of negligence
- The defendant owed the plaintiff a legal duty
- Defendant by acting negligently breached that duty
- Plaintiff suffered actual damage
- Negligence was an actual cause if this damage
- Defendants negligence was a proximate cause of the damage
What is the standard of care in the negligence theory?
Exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstance to minimize harm
Is the standard of care in danger different?
No. The standard of reasonable care under the circumstances. Reasonable care in proportion to the danger involved in his act
What is the proper standard of care?
- Reasonable or ordinary care under the circumstances.
2. If the foreseeable danger is high the reasonable person will exercise a greater degree of care
Are mentally disabled people held to a standard if reasonable care?
Yes. As a matter of public policy.
- Provides incentives for those responsible for people with disabilities to prevent harm and restrain those who are potentially dangerous
- Removes encouragement for accused tortfeasors to fake a mental disability
- Removes problems in the courts with trying to identify and assess the significance of an actors disability.
- Forces persons with disabilities to pay for damage they do.
Define the standard of a reasonable man
A minimum of attention, perception, memory, knowledge, intelligence, and judgement in order to recognize the existence of the risk. If an actor has MORE than the MINIMUM of these qualities he is required to use the superior quality in a manner reasonable under the circumstances .
Can a child be held to an adult standard?
Yes. When the activity a child is engaged in is inherently dangerous the child should be held to an adult standard.
Define inherently dangerous
Adult skills is required and operation is normally performed by adults
Define children negligence
A child accused of negligence is held to the standard of care of a reasonably careful child of the same age, intelligence, and experience
What is The rule of sevens?
- Minors over 14 are presumed capable of negligence;
- Those between 7-14 are presumed incapable of it
- Those 7 and below incapable of negligence as a matter of law
Modern application of rule of 7
Children under 5 incapable of negligence.
What does the court mean when a decision is as a matter of law?
There is no room for reasonable jurors to differ about the conclusion and therefore the court directs a verdict
When is negligence per se applicable?
Applies ONLY to statues that declare conduct unlawful but are silent to civil liability (ex. Speeding is a crime punished criminally but not civilly therefore it applies)
When is a statue allowed to replace the common law duty of care?
When the statue or regulation:
- Clearly define the define the required standard of conduct;
- Intended to prevent the type of harm defendants act or omission caused;
- Must be a member in the class of persons the stat./reg. was met to protect
- Must have been the proximate cause of the injury
Is violation of a statue automatically implies negligence per se?
No. There are instances where violation is excused: a. The violation is reasonable in light of actors: childhood, physical disability, or physical incapacitation; b. the actor exercises reasonable care in attempting to comply with the statue; c. The actor neither knows nor should have known of the factual reasons the render the statue applicable; d. The actors violation is due to confusion in the language of the statue or compliance would invoke greater risk of physical harm to the actor than noncompliance.
Is negligence per se applicable to children?
No. A minors violation of a statue does not constitute proof of negligence, but may be used as evidence of a minors negligence
What is the Logic of proximate cause analysis
Whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other. A direct connection.
What is the Palsgraf standard of negligence?
The risk of harm must be measured within the range of apprehension. Wrongs are measured in terms of natural or probable when unintentional. “Scope of danger per professor Puhol”
What is the counter argument to scope of danger?
Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others it does not matter they are unusual, unexpected, unforeseen, or unforeseeable. As long as the damage is a proximate cause
