Negligence Flashcards
Definition of Negligence
A person acts negligently if the person does not exercise reasonable care under all circumstances
4 elements of negligence
1 - duty - standard of care - standard is a reasonably prudent person
2 - breach (heart of negligence) - did D breach his duty/deviate from the standard of care?
3 - causation - did the breach of duty cause damages?
4 - damages - there must be truly actual compensatory damages for there to be negligence
what reasonable precautions does an individual have a responsibility to take when dealing with dangerous instruments such that the risk of injury posed by the instrument does not outweigh its utility?
1 - purpose for which they are used
2 - the probability of injury
3 - the precautions necessary to prevent such injury
4 - the relations such precautions bear to the beneficial use of the premises
L x P > B
Injury x Probability is greater than burden - negligent
The standard of care is…
the reasonably prudent person standard
is the standard of care objective or subjective?
objective
Standard of Care and physical disabilities
If someone has a physical disability, you insert the physical disability into the standard of care
Standard of Care and mental disabilities
If someone has a mental disability, you do NOT add this into the standard of care
Standard of Care for drivers
Drivers have a duty to investigate and maintain their vehicles that may become dangerous when their dangerous condition could be found through a reasonable inspection
Standard of Care for new drivers v. old drivers
Held to the same standard!
Standard of Care for individuals with superior skills
If P finds out that D is a specialist and for example, they are doing a medical procedure, then they would be held to a higher standard if it turns out that the doctor did not disclose an important illness or some factor that would affect a surgery
Custom and Standard of Care
P may offer evidence of custom, common usage, and practice in making his case for negligence
Universality - the practice does not need to be universal but it should be fairly well defined
Emergency situations and SoC
D only needs to act like a reasonably prudent person confronted with the same emergency
Child involved in an inherently dangerous activity and SOC
A child may be held to a higher adult standard of care when the child is engaged in an inherently dangerous activity for which the adult standard should apply
SOC for minors with superior intelligence
subjective test - if a minor D is more intelligent or less intelligent, they will be held to a degree of care that similarly intelligent minor Ds would exercise
Definition of Malpractice
negligence done by a professional acting in the scope of his profession
SoC for Professionals - average?
No, because a below average professional could still provide a minimally prudent standard of care
Basic Principle of SoC for professionals
reasonable prudent person takes on the profession of the actor and an objective standard is applied
SoC for lawyers
A lawyer is not liable for a mere error in judgment if they use reasonable care and diligence that other lawyers would use
national standards v. local standards
When there is a nationally certified professional, they have to comply with national standards not local standards
(architects, lawyers, doctors)
Rule statement for negligence
An action for negligence requires the plaintiff to prove to a jury by a preponderance of evidence that the defendant had a duty, he breached that duty, and that the breach both actually and proximately caused the plaintiff’s actual damages
Zone 1 for Negligence
Case starts here. If P does not produce any evidence in support of her prima facie case
Zone 2 for Negligence
If P comes forward with enough evidence in support of her prima facie case - case will go to jury
Zone 3 for Negligence
P’s case is so strong that unless D comes forward with rebutting evidence, the court will have to order a directed verdict in P’s favor
