Negligence and Defenses Flashcards
What is Negligence?
An individual is negligent if they deviate/breach from the applicable standard of care, causing a plaintiff to suffer damages.
What are the elements of negligence?
1) Duty (including standard of care)
2) Breach
3) Causation (legal and proximate)
4) Damages
When does an individual have have a duty of care?
Two prevailing views:
Majority/Cardozo View: An individual has a duty of care to all persons within the sphere of harm.
Minority/Andrews View**: An individual owes a duty of care to everyone.
Generally, what is the standard of care?
Absent circumstances that warrant a heighted standard of care, an individual owes a reasonable duty of care.
This means that an individual has a duty to act similar to a reasonably prudent person in similar circumstances.
When does a person breach their duty of care?
Generally, when they fail to act like a reasonably prudent person in the circumstances.
Causation: Actual and Proximate
A defendant must have been the actual and proximate cause of an individual’s harm.
Actual: The defendant’s conduct actually caused the plaintiff harm.
Proximate: The of harm that the plaintiff suffered was a foreseeable consequence of the defendant’s conduct.
What sort of damages are sufficient to succeed in a negligence action?
Actual, physical damages OR property damage.
Loss of economic value or opportunity is not sufficient!
Defense: Assumption of the Risk
A plaintiff may be barred from recovery if they assumed the risk of harm. Requires:
1) Knowingly
2) Voluntarily
Does an assumption of risk defense apply in emergency situations?
No, as the need to immediate action in an emergency negates the voluntary element.
What is negligence per se?
An alternative way to establish a standard of care. Violation of the statue is a breach.
1) Statute places duty
2) Defendant violates duty
3) Plaintiff within class of people designed to protect
4) Plaintiff suffered harm intended to prevent
