Negligence

Question 1

Negligence Elements and Defenses

Answer 1

1. ) Duty of care owed to the P by the D -Determined by the court whether there is a duty or not. Generally, everyone owes a duty to other not to cause harm through negligent behavior, which standard is typically REASONABLE CARE UNDER THE CIRCUMSTANCES. Heightens standard of care may apply in cases involving persons with major physical handicaps, children, professionals, landowners being sued for injury related to a condition on the land, common carriers, and people sho have violated statutory duties.
2. ) Breach of the duty by the D -The jury decides whether the D has breached her duty to the P. If the jury determines the D has lived up to the required standard of care, there is no breach of duty; if the jury decides the D has failed to live up to the required standard of care, there has been a breach of duty.
3. ) Breach was the Cause of the harm to the P -The jury decides whether the breach of duty was the cause of the harem to the P. To establish cause, the P must show the defendant’s act was the cause in fact and the proximate cause of the harm.
4. ) Actual Damage -The jury decides whether the O has established damage. DEFENSES: Common law = Contributory Negligence. Modern jurisdictions = Comparative Negligence. The jury compares the negligence of the P with the negligence of the D. Assumption of risk by the P is a defense in a contributory negligence jurisdiction, and is a factor to consider in a comparative negligence jurisdiction.

Question 2

Negligence: Duty

Answer 2

The court determines whether the D owes a duty of care to the P and, if so, what that duty is. Generally: Everyone has a responsibility to other people living in society to be careful in their behavior and not cause others unnecessary harm. That responsibility is referred to in the law of torts as the “duty of care” or “standard of care.” Who is owed this duty: The duty of care is owed to all foreseeable Ps. A P is a foreseeable P if they are determined by the court to be in the “zone of foreseeable danger” from the D’s act. If the court determines the P is not in the “zone of foreseeable danger,” the P cannot prevail with a negligence claim. Omissions: In most situation, there is no duty to come to the rescue of a person in distress. However, once a rescue effort has started, the actor has a duty to use reasonable care during the rescue. Common carriers and innkeepers do owe a duty to passengers and guests to take reasonable affirmative action to prevent harm.

Question 3

Basic Duty

Answer 3

The Reasonable Person Standard of Care A person must act with that degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances. 1.) Reasonable care: What actions would a reasonable person have taken under the circumstances? 2.) Circumstances: When extraordinary circumstance are involved, the question remains: “What action would a reasonable person have taken under THOSE circumstance?” 3.) Applicability: The duty to exercise reasonable care under the circumstances will be the applicable standard of care unless a special duty applies due to the status of the D or the P.

Question 4

Persons with a Major Physical Handicap: Special Standard of Care

Answer 4

A person with a Major Physical Handicap must excercise that degree of care that would be exercised by a reasonably prudent person with that handicap. 1.) Major Physical Handicap: A substantial loss of eyesight or use of limbs would always be classified as a major physical handicap. 2.) Distinguishing Mental Handicap: Mental handicaps including low I.Q. and mental illness are not classified as physical handicaps. Persons with those disabilities must exercise reasonable care under the circumstances.

Question 5

Children: Special Standard of Care

Answer 5

A child must exercise that degree of care that would be reasonable for a child of like age, education, intelligence, and experience. 1.) Child: Any person less than 18 years of age at the time of the alleged tort will be classified as a child. 2.)Exception - Adult Activity: A child engaging in an activity that is classified as an “adult activity” must exercise reasonable care under the circumstance. The textbook examples of an adult activity are driving a car, flying a plane or operating a piece of heavy machinery.

Question 6

Professionals: Special Standard of Care

Answer 6

A person holding himself out as a member of a learned profession is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing. 1.) Professional: Professionals would always include doctors, lawyers, architects, engineers, psychologists, accountants, and pharmacists. If the professional possesses some unique knowledge not shared by members of the profession, she has a duty to use that unique knowledge in her professional activity. 2.) Doctors - Informed Consent: A doctor has a duty to warn a patient of serious risks in all medical procedures. Failure to warn is a breach of duty. 3.) Doctors - The Locality Rule: Under traditional law, a doctor not holding himself out as a specialist had a duty to exercise the knowledge and skill of the other doctors in good standing in that community. In light of the Internet, most doctors have access to the same basic information and therefore courts now often eliminate the “in the community” requirement when stating the medical standard of care. A doctor holding himself out as a specialist will always be held to the national standard of care.