Page 11 Flashcards
If a defendant claims ignorance of a well-known hazard, does that affect his negligence liability?
That is irrelevant, because he should have known
What are the things that a reasonable person is expected to know?
That fire burns, that loaded weapons are dangerous, etc.
What are the things that reasonable people are expected to notice?
Things that are evident, open, and apparent
Can the D be liable for not seeing something that reasonably should have been noticed?
Yes
If a reasonable person would not have foreseen injury to anyone from defendant’s conduct, is there liability?
Usually there’s no duty owed to someone unexpectedly hurt by defendant’s actions
What are the different subjective allowances that the jury is allowed to consider to determine the reasonable man for negligence?
** Physical characteristics like Super abs are my ViCES and I become Suddenly incapacitated like a Mental Child **
- emergency
- physical characteristics
- voluntary intoxication
- mental conditions
- insanity
- superior abilities
- child
- sudden incapacitation
- compliance with statute
- custom
What is the mnemonic to help remember the subjective allowances for the reasonable person standard for negligence?
Physical characteristics like Super abs are my ViCE, and I become Suddenly incapacitated like a Mental Child
- physical characteristics
- superior abilities
- voluntarily intoxicated
- custom
- emergency
- insane
- sudden incapacitation
- mental conditions
- children
What is the emergency doctrine for subjective allowances to the reasonable person standard for negligence?
If there is an event that requires a quick decision that is so unusual that personal experience isn’t helpful to know how to act, defendant is held to the standard of a reasonable person under those emergency conditions and doesn’t have to use the same judgment and reflection as usual
If a person makes a judgment error in an emergency situation, is there negligence liability?
No, so long as a reasonable person in that situation would’ve also made the error
Can a defendant use the emergency doctrine to escape liability if he contributed to the emergency?
No
Can you ever be negligent for failing to anticipate an emergency?
Yes, pools must anticipate drownings, hotels must anticipate fires, etc.
What are the physical characteristics that can be considered for the reasonable person under negligence?
A reasonable person is thought to have the same physical characteristics as the defendant. So can consider:
- height
- weight
- loss of limb
- deafness/blindness
- age for elderly limitations
A blind person is held to the standard of what for negligence?
A reasonable blind person under the same or similar circumstances
If you get voluntarily intoxicated, can that change the reasonable person standard for you for negligence?
No, because a reasonable person is sober, so defendant must act as a sober man
Are mental conditions relevant to the reasonable person standard for negligence?
No, only physical conditions are considered, because a reasonable person is thought to have the knowledge and mental capabilities of the average member of society, even if he doesn’t have that
What is the standard of care required for an insane person for negligence?
They are held to the standard of the sane, and those with cognitive disabilities are held to the standard of someone with normal intelligence
If you have superior abilities, skills, or knowledge, what is your standard of care for negligence?
You must exercise your superior qualities in a reasonable manner and use all of the knowledge and skills you possess
What are considered for superior abilities to change the standard of care for negligence?
Acquired competence (not natural intelligence or athleticism).
What is the standard of care for children under negligence?
- majority: according to a reasonable child of the same age, intelligence, education, and experience
- minority: divides into age levels
What is the minority division of age levels for negligence?
- six and below: not capable of negligence
- 7 to 13: rebuttable presumption that defendant was not negligent
- 14+: rebuttable presumption that defendant was capable of negligence
What is the adult activities exception to the child standard for negligence?
If a minor engages in adult activities, he is held to the same standard as a reasonable adult in the same circumstances
How does sudden incapacitation affect your duty of care for negligence?
If you are suddenly and unforeseeably physically incapacitated, there is no liability. Ie: seizure or heart attack
How does complying with statute affect the reasonable man standard for negligence?
It sets a minimum standard, although sometimes the reasonable person should exceed this
If you comply with the statute, can you still be negligent?
Yes, if the jury says a reasonable person should’ve taken extra precautions outside of just compliance with the law
What is the “some evidence” minority view on compliance with statute for negligence?
The violation of the statute is some evidence of breach of duty, so the jury can consider it to decide if the defendant acted reasonably or not
What is a custom?
A well-defined and consistent way of performing a certain activity that is widespread enough that the defendant knew or should have known about it
What must be shown about a custom in order for a defendant to be liable for not following it?
The custom was developed to prevent exactly the kind of harm that the plaintiff suffered
What is an example of a situation where custom is unreasonable?
It is customary for people to speed, but that doesn’t mean speeding is reasonable
What is the other word generally used for custom?
Industry-standards
If you see industry standards written on an exam, why is it almost always the wrong answer?
Because the industry standard is relevant, but doesn’t ensure a win or loss just because someone complied with it
What is an example where someone might have liability for deviating from custom?
If a tenant cut herself on a shower door that shattered, the landlord might have liability for not following the custom to put in shatterproof doors because that custom was developed to protect people from the exact injury that happened
What is in example of an unreasonable custom?
Jay walking
Does a university owe a duty to its students?
No. There is no duty to protect/guide new students on the dangers of sex, alcohol, drugs, or even over studying
School officials have a duty to protect students from what?
- each other: duty to adequately supervise, so the school is liable for foreseeable injuries proximately related to inadequate supervision
- negligent hiring or retention: of someone they knew or should’ve known was an abuser
Courts won’t apply a duty in cases of crushing liability. What does that involve?
Usually public utilities, because the courts fear crushing liability if they find privity between an individual and the utility
