Negligence Essay Rubric Flashcards
Rule: Negligence…
Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm and it requires proof of duty, breach of duty, causation (cause-in-fact and proximate cause) and damages.
Analysis: Duty…(rule statement and two things it requires)
Duty is an obligation to use reasonable or ordinary care for the protection of others against unreasonable risk. The proof of duty element requires two things to be determined. They require a source of duty and a standard of care (what is considered reasonable for the person in the circumstances).
What are some typical sources of a DUTY?
Negligence Source of Duty=CORPL
Typical sources of duty include: legislation, relationships, privity of contract, customs/standards, and owners and occupiers of land.
1/5 Sources of Duty: Legislation
First, Legislatures often prescribe standards of care (SoC) for the protections of others through statutes, ordinances, and regulations. (Apply facts if applicable)
2/5 Sources of Duty: Relationships
Hint: There a 4 elements for when relationships lead to duties.
(4 quarters make a dollar, you need dollars for your relationship)
Hint: There are 7 typical relationships that lead to duties.
(7 min in heaven could lead to a relationship)
Secondly, relationships lead to duties when P and D had a preexisting duty, foreseeability of harm, connection between D and P’s injury, and P relied on D to protect them. (Apply facts if applicable). Typical relationships include: Duty to control conduct of another (define). Duty to protect school children (define). Parent/child (define). Store owner/customer (define). tenant/guest (define). The Tarasoff Rule (define). Foreseeable plaintiffs (define).
(Is one applicable to the case?)
3/5 Sources of Duty: Privity of Contract
Thirdly, Privity of Contract establishes a duty as part of a contract. (Apply facts to case if applicable). Generally, there is no duty if the contract was never performed (nonfeasance), but a duty arises if a contract was misperformed (misfeasance). (Apply facts to case if applicable). However, there are exceptions that implant a duty regardless of nonperformance. Including public callings (define), security contracts (define), fraud (define), property supervisor (define), dangerous instrument maintenance (define), and landlord repair contract (define).
(Is one applicable to the case?)
4/5 Sources of Duty: Customs and Standards
Fourthly, when custom and practice have removed certain dangers, the D may have a duty to adjust with the standards if he was aware of the change. (Apply facts if applicable).
5/5 Sources of Duty: Owners and Occupiers of Land (OOL)
Lastly, Owners and Occupiers of Land (OOL) typically have a duty to maintain their property. (Apply facts to case if applicable). Duty to the people outside of their premises, duty to people on their premises, duty that a lessor owes to his lessees’ guest, are the three main categories of deterring liability for OOL’s. (Is one applicable?) When looking at the duty to people outside their premises you look at the Artificial and natural conditions. An artificial condition implants the possessor with a duty to exercise reasonable care to insure they are not dangerous to neighbors. (Apply facts to case if applicable). For natural conditions, the possessor only had a duty to the address known dangerous issues. (Apply facts if applicable).
When looking at the duty to people on their premises you look at whether they are Trespassers, licensees, or invitees. (Is one applicable?) For Trespassers, generally, there is no duty owed to someone that enters or remains on land without consent. However, there are a few exceptions to that rule. Whether the trespasser was a frequent trespasser (define), discovered trespasser (define), in need of rescue (define), or a child (define). (Apply facts if applicable). For licensees or social guest, generally, the D is only subject to liability if he knows of a dangerous condition, the licensee does not, doesn’t expect the licensee to discover the condition, and fails to warn or exercise reasonable care. (Apply facts to case if applicable). An invitee or in other words a person that is invited on land so both the invitee and the possessor benefit, the possessor owes a duty of exercising reasonable care to the invitee for the premises and the people on the premises. (Apply facts if applicable).
When looking at the duty that a lessor owes to his lessee and the lessees’ guest, generally, the lessor of real property has no duty to the lessee or the lessees’ guests. However, there are many exceptions to this general rule. They include latent hazards (define), pre-exciting conditions (define), activities during lease (define), contracts to repair (define), used for public (define), lessor retained control (define), agreement to repair (define), notice (define), services (define), and negligent repairs (define). (Is one applicable?)
Pt. 2 Analysis: Standard of Care…
Negligence Standard of Care=PAMPERS
Standard of care is used to determine whether the D’s actions were objectively reasonable. Generally, the D is required to behave like a reasonable prudent person under the circumstances. (Apply facts if applicable). However, what is considered reasonable behavior may decrease or increase depending on the circumstances of the D.
The circumstances that may reasonableness to decrease include physical deficiencies (define), minors (define), sudden incapacity (define), and conduct done during emergencies (define). (Is one applicable?) In all of the situations the D must now show that they behaved like a reasonably prudent person with the same characteristics. (Apply facts if applicable).
On the contrary, the circumstances that may cause reasonableness to increase include mental superiority (define), physically exceptional (define), activities requiring skills (define), and professionals (define). (Is one applicable?) In all of the situations the D must now show that they behaved like a reasonably prudent person with the same characteristics. (Apply facts if applicable).
