Negligence

Question 1

To make out a case for negligence there must be:

Answer 1

i. Duty – Generally, there is a duty for members of society to act reasonably.
ii. Breach of the duty – If the defendant didn’t act reasonably, they breached.
iii. Cause in fact of the harm – The actual but-for cause of the harm.
iv. The proximate cause of the harm – Foreseeable, unbroken chain of events.
v. Harm – Actual damage must occur.

Question 2

Learned Hand

Answer 2

B < P*L

1. If the burden of precautions is greater than the probability times the loss, then there is no duty.

Question 3

Special knowledge and skills

Answer 3

i. Restatement 3d §12
1. If an actor has essential skills or knowledge that exceed that of a reasonable person – these talents are taken into consideration when determining whether an actor has behave reasonably.

Question 4

How the reasonable person acts in an emergency:

Answer 4

i. Someone in an emergency cannot be held to exercise reasonable judgment under circumstances where there is no time for deliberate action.

Question 5

Physical and Mental Attributes:

Answer 5

i. Mental incapacity – same standard as a reasonable person
ii. A person with physical disabilities may have to be more careful but is not held to a higher or lower standard of care

Question 6

Children

Answer 6

ii. Restatement 3d §10
1. A child’s conduct is measured the same as a reasonable person of the same age, intelligence, and experience
2. A child less than 5 years old cannot be negligent
3. When a child partakes in an adult activity, they are not subject to special treatment

Question 7

Professionals

Answer 7

i. One who represents themselves to be a physician, surgeon, accountant, lawyer or engineer are held to the same standard of care possessed by someone actually in those professions.

Question 8

Negligence per se

Answer 8

If an actor violates a statute  negligence

Question 9

Res Ipsa Loquitur

Answer 9

“the thing speaks for itself” (The mere fact an accident has occurred is evidence itself of negligence)

i. Restatement 3rd of Torts, §17: Three elements:
1. The event must be of the kind which ordinarily does not happen in the absence of someone’s negligence;
2. It must be caused by an agency or instrumentality with exclusive control of the defendant; and
3. It must not have been due to any voluntary action or contribution on the part of the plaintiff.