Negligence - Duty

Question 1

Duty (A duty to exercise reasonable care)

Answer 1

(a) Court decides
(b)They will often apply the Objective/ Reasonable persons standard
Exceptions to the reasonable person:
(1) Sudden onset of health issue (e.g., heart attack, etc.) that was not a foreseeable risk
(2) Caretakers that know the risks of taking care of an ill or disabled person could have reasonable seen the harm

Question 2

Third Restatement of Torts, Negligence (Duty–The Negligence Standard)

Answer 2

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

-The principle fault-based approach to tort law

Question 3

Third Restatement of Torts, Disability (Physical Traits)

Answer 3

(a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.
(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

Question 4

Third Restatement of Torts, Children

Answer 4

(a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c).
(b) A child less than five years of age is incapable of negligence.
(c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Question 5

Third Restatement of Torts, Knowledge and Skills (Experts)

Answer 5

If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

Question 6

Mental Illness (See Third Restatement of Torts, Disability, Part c)

Answer 6

(c) An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

The policy basis of holding a permanently insane person liable for his tort is:
1. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it
2. To induce those interested in the estate of the insane person (if he has one) to restrain and control him; and
3. The fear an insanity defense would lead to false claims of insanity to avoid liability
4. “In an era in which society is less inclined to institutionalize the mentally disabled, the reasonable person standard of care obligates the mentally disabled to conform their behavior to the expectations of the communities in which they live”; and
5. The reasonable person standard of care allows courts and juries to bypass the imprecise task of distinguishing among variations in character, emotional equilibrium, and intellect.”

Question 7

Unreasonable Faith

Answer 7

1. Friedman v. New York
   The court took into account the plaintiff’s religious beliefs and found that she was not contributorily negligent
2. Braverman v. Granger
   Different holding that “the proper inquiry is not [into] a person’s subjective reasons [but rather] whether the blood transfusion was an objectively reasonable means to avoid or minimize damages”
3. Religious Freedom Restoration Act (RFRA)
   Enacted in 1993, provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government’s actions are “in furtherance of a compelling governmental interest and [are] the least restrictive means of furthering that . . . interest.”

Question 8

Sex and Gender

Answer 8

Tort law today generally does not make reasonableness determinations turn on the sex or gender of the actor, at least not explicitly

Title VII of the Civil Rights Act of 1964 - In the early 1990s, some courts, notably the United States Court of Appeals for the Ninth Circuit, adopted a “reasonable woman” standard for determining whether a female plaintiff had been subjected to a sexually harassing hostile work environment in violation of Title VII