Negligence Flashcards
What do we need to consider for Statutory and regulatory standards?
1) what is the purpose of the statute?
2) is it relevant to the case?
3) who is the protected class?
Steps to take when confronted with a possible negligence for violation of a statute
1) is there a breach?
- determined by looking at who is the protected class and what the harm is that the statute intended to protect
2) causation
- risk-benefit analysis (what are the circumstances that caused the breach? Is it an adequate excuse? e.g. Tedla v. Ellman)
Res ipsa loquitur
1) the outcome does not ordinarily occur in the absence of negligence
2) the instrumentality must be the exclusive control of the D
3) the P did not contribute to the accident
Special relationship with municipality
There must be:
- Assumption of municipality to act on behalf
- Knowledge that inaction could lead to harm
- Direct contact between municipal agents and P
- Justifiable reliance
Danger invites rescue
The wrong that imperils life is a wrong to the imperiled victim; it is also a wrong to the rescuer
Even if you put your yourself in peril
Negligence rule statement
Negligence is the failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation. The elements necessary to prove negligence are 1) a breach 2) duty and standard of care 3) causation and 4) damages
Land owners duty
A property owner owes to all who come on the land reasonable care under the circumstances.
Methods for determining a landowners duty:
1) single standard- duty of reasonable care under the circumstances does not arise from the status of the injured person but the foreseeability of their use of the land and the possibility of injury resulting (majority)
2) sliding scale- reflects both the foreseeability of injuries to others, the obligation of the injured person to foresee the precautions likely to be taken for his benefit and the varying economic burdens justifiably places on the possessor to protect those on his property against harm
*note: on exam state whether it would make a difference using one method versus the other
Prima facie elements
1) duty
- duty not to expose P to unreasonable risk of harm
2) breach of duty
- falling below standard of care
3) cause
- cause in fact
- proximate cause
4) harm to P
- must be physical harm
Three ways to view evidence and negligence
Conclusive presumption (negligence per se)- so clear the jury must find negligence (unless affirmative defense)
Prima facie- enough to go to the jury of fact
Inference of negligence- some evidence, but how strong is the inference?
Res ipsa loquitur, what must be established to show prima facie criteria?
Accident probably wouldn’t have happened without negligence
Cause of harm exclusively in D’s control
Not due to act of P
Assumption of risks
P fully knows and appreciates risk and chooses to encounter
primary- D not negligent, no duty
secondary- D and P negligent
