Negligence (pt2) proving breach of duty Flashcards
What is Learned at hand formula?
The negligence of an injured party does not excuse the negligence of the party that causes the injury. Negligence exists if the burden of taking precautions is lower than the loss caused by the accident that occurs in the absence of those precautions, multiplied by the probability of the accident. A defendant would be found liable if Burden of precaution < magnitude of harm X probability of occurrence (Davis v. Con rail).
What is negligence per se?
- An omission, or failure to perform an act required by statute, constitutes negligence per se. When a statute requires an affirmative action, the failure to perform that action constitutes a violation of a legal duty. It is negligence per se. The violator may be liable for damages, but only if the omission is the proximate cause of the injury.
Where Negligence per se doesn’t apply?
The doctrine of negligence per se does not apply if the plaintiff was not in the class of persons designed to be protected and did not suffer the type of harm sought to be prevented by the law. Just because a statute has been violated does not necessarily mean that a defendant is liable for all damage that may be ultimately traced back to the violation. (Tobacco case. The statute was to prevent smoking for youths).
How is Negligence per se applied?
To apply the doctrine of negligence per se, the plaintiff has the burden of proving that (1) the defendant violated a statute that prohibited certain particular conduct, (2) that the statute was intended to protect against the harm for which recovery is sought, and (3) that the victim harmed by the violation was part of the class of persons for whom the statute was intended to provide protection.
-If the plaintiff was not in the class of persons designed to be protected and did not suffer the type of harm sought to be prevented by the law, then negligence per se does not
Could a corporation have its own standard as a reasonable person? (ie industry manual etc)
no, a person or corporation cannot set its own standard of conduct as the standard of the reasonable person (Walmart v. Wright)
What is Res Ipsa?
If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence. The plaintiff does not have the initial burden of showing that the act could not occur without negligence. However, if any facts surrounding the incident occur that are inconsistent with negligence, it is the defendant’s responsibility to prove them (Byrne v. Boadle).
How to prove Res Ipsa?
the plaintiff must prove 3 things: The incident was of a type that does not generally happen without negligence. It was caused by an instrumentality solely in the defendant’s control. The plaintiff did not contribute to the cause.
how to prove Gross negligence?
A person acts with recklessness in engaging in conduct if:
- A) the person knows of the risk of harm created by the conduct . . . and
- B) the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk (MOBIL v. ELLENDER).
