Negligence - Duty

Question 1

Elements of Negligence

Answer 1

• Duty
• Breach of Duty/Negligence
• Actual Harm
• Factual Cause
• Scope of Liability/Proximate Cause

Question 2

Duty of Care

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Answer 2

An obligation that the law recognizes to conform to a particular standard of conduct

Question 3

Reasonable and Prudent Person Standard

Answer 3

In any situation, a person must act in a reasonably prudent way to prevent harm to himself and others

Question 4

Standard v. Degree of Care

Stewart v. Motts 1995

Answer 4

There is only one standard of care – reasonable care. However, the degree of care will vary based on the situation and the people involved. Defendant started a car while fixing it and the car exploded, burning plaintiff. Plaintiff said that the jury should have been instructed that defendant should have used a higher standard of care.

Question 5

Reasonable and Prudent Person Standard

Physical Disability

Shepherd v. Garner Wholesale Inc. 1972

Answer 5

A person with a visual disability doesn’t have a higher duty of care than a person without a visual disability. Plaintiff tripped on an uneven sidewalk in front of Defendant’s business.

Question 6

Reasonable and Prudent Person Standard

Sudden Incapacitation

Answer 6

If someone is suddenly incapacitated by a heart attack or something, he is judged as a reasonable and prudent person with the sudden incapacitation. However, if he knew the incapacitation was likely to happen, he was breaching the duty of care

Question 7

Reasonable and Prudent Person Standard

Psychological or Intellectual Disabilities

Creasy v. Rusk 2000

Answer 7

A mentally disabled person (Alzheimer’s) is held to the same standard of duty of care as a reasonable person under like circumstances, regardless of the person’s ability to understand or control his actions. However, if the person is under the supervision of a care taker and hurts the care taker, the person is not liable because the care taker signed up for that risk when taking the job.

Question 8

Reasonable and Prudent Person Standard

Psychological or Intellectual Disabilities

Answer 8

A person with a psychological or intellectual disability is judged as a reasonable and prudent person without a mental disability

Question 9

Reasonable and Prudent Person Standard

Super Abilities

Answer 9

A person with super abilities has the standard of care as a reasonable and prudent person with the same super abilities.

Question 10

Reasonable and Prudent Person Standard

Super Abilities

Hill v. Sparks 1976

Answer 10

A person with specialized knowledge has a duty to use the specialized knowledge to prevent harm. Defendant had operated earth moving equipment for years. He told plaintiff to ride on the ladder of the machine he was driving. The machine bounce off a mound of dirt, and plaintiff fell, got run over and died.

Question 11

Reasonable and Prudent Person Standard

Intoxication

Answer 11

If someone is drunk, he has the same duty of care as a sober person

Question 12

Reasonable and Prudent Person Standard

Children Performing Dangerous Adult Activities

Stevens v. Veenstra 1998

Answer 12

A child performing a dangerous adult activity will be held to the same standard of care as an adult. A 14-yeard-old caused a car accident while driving with his instructor.

Question 13

Reasonable and Prudent Person Standard

Children

Answer 13

Children are usually held to the standard of care of a child of the same age, intelligence and experience.

Question 14

Reasonable and Prudent Person Standard

Children Rule of Sevens

Answer 14

Some states say that children below 7 are incapable of negligence, children between 7 and 14 are presumed incapable of negligence, and children 14 and older are capable of negligence

Question 15

Reasonable and Prudent Person Standard

Emergency Exception

Answer 15

An emergency is a sudden, unforeseen, unexpected happening or condition that calls for immediate action and was not caused by the person using it as a defense

Question 16

Reasonable and Prudent Person Standard

Emergency Exception

Posas v. Horton 2010

Answer 16

A jury should not be given sudden emergency instructions when the defendant caused the emergency. Plaintiff stopped suddenly to avoid hitting a woman and defendent rearended her. Defendant tried to use the emergancy exception but she was driving too close to plaintiff.

Question 17

Contributorily Negligence

Answer 17

If a plaintiff has partial responsibility for this breach of duty, it will probably reduce the damages she receives

Question 18

Negligence per se

Answer 18

When a person violates a statute that doesn’t mention civil liability, the violation itself breaches the duty and replaces the reasonable and prudent person standard as long as it meets the requirements

Question 19

Negligence per se

Statutory Law

Answer 19

Judges cannot make the rules; it must be statutory law

Question 20

Negligence per se

Common law

Martin v. Herzog 1920

Answer 20

The unexcused breaking of a statute is negligence itself. Plaintif’s decedent was killed in an accident while driving a buggy at night without headlights. State law said all buggies had to have headlights, so plaintiff was negligent per se.

Question 21

Evidence of Negligence per se

Answer 21

Some states make breaking a statute evidence of negligence rather than negligence per se

Question 22

Negligence per se

Common Law 4 Elements

O’Guin v. Bingham County 2005.

Answer 22

A statutory duty of care will replace the reasonable person standard in a negligence action only if

1. the statute or regulation clearly defines the required standard of conduct,
2. the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused,
3. the plaintiff must be a member of the class of persons the statute or regulation was designed to protect, and
4. the violation must have been the proximate cause of the injury.

Two kids were playing in an open garbage dump and got buried when a section of the pit collapsed. All the elements were met.

Question 23

Negligence per se

California law

Answer 23

The actor did not do what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law

Question 24

Negligence per se

Excuses

Answer 24

The Restatement Third lists excuses that might make the actor not negligent

• The violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation
• The actor exercises reasonable care in attempting to comply with the statute
• The actor neither knows or should know of the factual circumstances that render the statute applicable
• The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public
• The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than would noncompliance.

This is not an exclusive lists so if you come up with another excuse and have a real argument behind it, use it.

Question 25

Negligence per se

Exception

Getchell v. Lodge 2003

Answer 25

An actor’s statutory violation is generally excused if it is the result of the actor being confronted with an emergency that is not caused by the actor’s own conduct. Defendant hit the breaks to avoid hitting a moose. Because thhe road was icy, she spun out into the other side of the road. Plaintiff was driving on the correct side of the road and hit defendant.