Negligence Flashcards
5 Elements of Negligence
1) Duty: to act reasonably to avoid causing harm to one another
2) Breach of Duty: P must establish that D failed to act reasonably
3) Cause-in-Fact: Connection between D’s negligent conduct and P’s harm
4) Proximate Cause: Liable for foreseeable consequences
5) Harm: must be a tangible harm to P
The Standard for Negligence
Must conform to the conduct of a reasonable man under like circumstances
Two Types of Negligent Conduct:
1) Act which as a reasonable man, the actor should recognize as involving unreasonable risk of causing an invasion of an interest of another
3) Failure to act that the actor has a duty to do
Hand Test
If B > L * P = Negligence
B=
Burden of taking the preventative measure
L=
Measure of typical loss
P=
Probability that loss will occur if preventative measure is not taken
When is an actor negligent under the Hand Test?
When the benefit of taking the preventative measure is more than the cost of the preventative measure
How does Emergency work?
Emergency is a factor that is taken into account when determining if the actor acted reasonably given the circumstances
** If the actor created the emergency they are still negligent**
How does Emergency work utilizing the Hand test?
Burden of taking preventative measure increases so the D is less likely to be negligent under the circumstances
How do disabilities work?
Negligent for failure to do what a reasonable person in the position of someone with the same disability would do
Example: Acting as a reasonably prudent blind man would
Mental Incapacity
Not taken into consideration when considering the reasonable person standard
5 Reasons why Mental Capacity not taken into Consideration
1) If both innocent, loss should be allocated towards injured person
2) Provides incentive to disabled persons care givers to watch them
3) D’s would fake mental disabilities
4) Difficult to draw the line between what is and isn’t a mental disability
5) People with mental disabilities live in this world and should be held to the same standard as everyone else
Adult Activites
Children doing adult activities are held to the same standard as adults because public safety requires it
Two Circumstances when joint and several liability occurs:
1) When actors acted in concert to cause the harm
2) When they acted individually but caused an indivisible harm
