T5 - Duty of Care

Question 1

4 Elements of negligence

Answer 1

1. Duty: P must show existence of a duty of care owed by the D.
2. Breach: of that duty
3. Causation:
   - Factual Causation:
   - Proximate Causation:
4. Damages:

Question 2

The elements of a prima facie case of negligence are:

Answer 2

The elements of a prima facie case of negligence are:
• A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury
• A breach of that duty by the defendant
• The breach is the actual and proximate cause of the plaintiff’s injury
• Damages

Question 3

Duty

Answer 3

Legally imposed obligation to take risk reducing precautions for benefit of others.

Question 4

To whom do you owe a duty?

Answer 4

Foreseeable victims. So you do NOT owe a duty to unforeseeable victims.

Within the zone of danger.
- But zone of danger depends on the activity you’re doing.

Question 5

Foreseeable

Answer 5

.

Question 6

Rescuers

Answer 6

Rescuers are foreseeable. So rescuers are owed a duty of care.

Question 7

how much risk reduction is required?

Answer 7

Reasonably prudent person acting under similar circumstances.

Question 8

THE GENERAL DUTY OF CARE IN NEGLIGENCE

Answer 8

A duty of care is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. The extent of the duty is determined by the applicable standard of care.
Therefore, when confronted with a negligence question, you should always ask:
To whom do you owe a duty?
What is the applicable standard of care?

Question 9

DUTY OF CARE OWED ONLY TO FORESEEABLE PLAINTIFFS

Answer 9

A duty of care is owed only to foreseeable plaintiffs—the class of persons who were foreseeably endangered by the defendant’s negligent conduct.
Someone who is not within the “zone of danger” from the defendant’s conduct cannot recover.

Question 10

Rescuers

Answer 10

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue).

a. Firefighter’s Rule: Firefighters and police officers are barred by the “firefighter’s rule” from recovering for injuries caused by the inherent risks of their jobs.

Question 11

Prenatal Injuries

Answer 11

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for “wrongful life,” but the parents may recover damages in a “wrongful birth” or “wrongful pregnancy” action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered.

Question 12

Intended Beneficiaries of Economic Transactions

Answer 12

A third party for whose economic benefit a legal or business transaction was made (for example, a beneficiary of a will) may be a foreseeable plaintiff.

Question 13

BASIC STANDARD OF CARE—THE …

What type of standard?
What is taken into account?

Answer 13

The REASONABLY PRUDENT PERSON
All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.

Defendant’s conduct is measured against a reasonably prudent person under the same or similar circumstances.

The reasonably prudent person standard is an objective standard, measured against what the average person would do.

Average Mental Ability: Defendant must act as would a person with average mental ability. Unlike the rule as to physical characteristics, individual mental disabilities are not considered; i.e., low IQ is no excuse. Likewise, insanity is no defense, and the defendant is held to the standard of a reasonable person under the circumstances.

A defendant’s mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse).

Same Knowledge as Average Member of Community: D is deemed to have knowledge of things known by the average member of the community, e.g., that fire is hot. Again, the individual shortcomings of the particular D are not considered. On the other hand, a D with knowledge superior to that of the average person is required to use that knowledge.
BUT, Exception for Superior Skill or Knowledge: While the reasonably prudent person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise that experience.

Exception for Physical Characteristics Where Relevant: The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim (but remember, one is expected to know one’s physical abilities and to exercise the care of a person with such knowledge—for example, a blind person should act as a reason- ably prudent person who cannot see and not attempt to, for instance, drive a car).

Physical Characteristics If Relevant— Same as Defendant’s: Notwithstanding application of the objective standard, if physical characteristics are relevant to the claim, the “reasonable person” is considered to have the SAME physical characteristics as the D. A person is expected to know any of his physical disabilities and is under a duty to exercise the care of a person with such knowledge; e.g., it may be negligent for a person with epilepsy to drive a car.