Negligence Duty and Breach Flashcards
NEGLIGENCE “PER SE”
Plaintiff may borrow the language of a criminal statute and make it to a more specific duty if (i) he is a member of the class intended to be protected by the statute; and (ii) the harm suffered is of the type that the statute was designed to prevent. Duty imposed by the statute will replace the more general common law duty of due care. Exception - However, violation of a statute may be excused where compliance would be beyond the defendant's control.
NEGLIGENCE
Elements: (i) a duty on the part of the defendant to conform to the standard of care of a reasonable person for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty; (iii) breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property.
NEGLIGENCE = Duty + Breach + Causation + Damages
If injury not reasonably foreseeable no duty is breached.
DEFENSE OF PROPERTY (LAND)
As a general rule, one may use reasonable force to prevent the commission of a tort against one’s property.
However, force that is likely to cause death or serious bodily harm is not permitted when the invasion is threatening property alone. Furthermore, one may not use indirect deadly force when such force could not lawfully be directly used.
PARENT DUTY OF CARE
The common law rule is that a parent is not vicariously liable for the tortious conduct of her child. However the parent may be liable for her own negligence in allowing the child to do something that injures another’s person or property.
RESCUER’S LIABILITY
The general rule in tort law is that no legal duty is imposed on any person to affirmatively act for the benefit of others. However, one who gratuitously acts for the benefit of another is then under a duty to act reasonably. If he acts negligently he will be liable for damages caused thereby (even physician malpractice because it would be foreseeable and would act as an intervening cause that would not relieve backpacker of liability).
RESPONDEAT SUPERIOR
Under the doctrine of repsondeat superior, an employer is not vicariously liable for the acts of an employee outside the scope of his employment. However, the employer may be liable for its own negligent selection if it has some reason to be on notice that the actions that resulted in harm were likely to occur.
At this point liability is not based on vicarious liability but rather on independent negligence grounds on the part of the employer.
PROFESSIONAL STANDARD OF CARE
A person who is a professional is required to exercise such superior judgment, skill, and knowledge as he actually possesses.
STANDARD OF CARE OF A CHILD
When the tortfeasor is a child, the standard of care generally imposed by the courts in negligence actions is that of a child of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors.
DUTY OF CARE OF LANDOWNER (NEGLIGENCE)
The duty owed by an owner or occupier of land to those on the land depends in most jurisdictions on whether the person on the land is characterized as a trespasser, licensee, or an invitee.
A trespasser: is one who comes onto the land without permission or privilege.
A licensee: is one who enters on the land with the landowner’s permission, express or implied, for his own purpose or business rather than the landowner’s benefit.
An invitee is one who enters onto the premises in response to an express or implied invitation of the landwoner. However, a person loses his status as invitee if he exceeds the scope of the invitation (e.g. if he goes into a portion of the premises where his invitation cannot be said to extend.
A landowner owes no duty to an undiscovered trespasser. On the other hand, a landowner owes a discovered or anticipated trespasser the duty to warn of or make safe artificial conditions known to the landowner that involves risk of death or serious bodily harm and that the trespasser is unlikely to discover.
