Act by Defendant

Act by Defendant

1. Was there a breach of a criminal safety statute?

   • Yes
     • Negligence Per Se
       • Judge's Q's
         • 1. Is statute applicable?
           • a. Safety statute?
             • b. P in protected class?
               • c. P suffered protected harm?
         • 2. Is violation of safety statute excused? (risk outweighed by necessity of emergency care?
       • Jury's Q's
         • 1. If D violated safety statute, the MUST find D negligent.
       • D found to have breached either: 1. duty to comply with criminal statute OR 2. breached duty of reasonable care
         • Was act by D cause in fact AND proximate cause of harm to P? (NEED BOTH FOR RECOVERY)
           • Cause in Fact
             • 1. But-for Test
               • 2. Substantial Evidence Test
           • Proximate (Legal) Cause
             • Tests:
               • 1. Policy Test - line is arbitrary, but is drawn where public policy is best suited
                 • 2. Foreseeability Test (MAJORITY) - D only liable for harm to P if it was foreseeable; increase in time/space, harm is less foreseeable
                   • 3. Direct Consequences Test (MINORITY) - Must be no intervening cause that removes liability from D; intervening act bmust be completely independent of D's orig act
             • Recurring Fact Pattern: EGGSHELL P
           • Harm to P
             • COMPENSATORY DAMAGES!
   • No
     • Common Law Negligence
       • Duty
         • Limited Duty
           • P is licensee (duty to warn of latent/known defects)
         • Duty of Reasonable Care?
           • 1. P in exceptions to "no duty"
             • 2. P is invitee (Maj. = totality of circumstances test)
               • 3. D already D in neg. action (Did D do what a reasonable _______ person would under ______ (emergency) circumstances?)
                 • Reasonable Person Standard
                   • 1. D = superior knowledge (doctor, atty, etc.)
                     • 2. D = minor, use reason. child standard (UNLESS engaged in adult activity driving car, boating, etc.)
                       • 3. D = physically disabled (ex. blind); use reasonable _____ standard
           • BREACH OF DUTY OF REASONABLE CARE
             • Judge's Q's
               • 1. Foreseeable Chance of Harm (D K or SHK)
                 • 2. Unreasonable Risk of Harm (Magnitude of risk outweighs utility of D's conduct)
             • Jury's Q's
               • D do what a reasonable _____ person under _______ circumstances?
       • No Duty
         • 1. D is child (5=Maj., 7=min)
           • 2. D is sudd. and unfore. disabled
             • 3. D is Alzheimers pat.
               • 4. P is tresspasser
                 • 5. D is Nonfeasor
                   • D is nonfeasor UNLESS
                     • 1. D is Cause in Fact of Harm
                       • 2. D undertakes rescue
                         • 3. D has "special relaysh" with P
                           • 4. D has duty to protect P
                             • 5. D has duty to control 3rd party
                               • 6. P (employee) sues D (corp.) that had duty to control conduct of supervisor (D2)
                   • 6. P is engaged in recreat. activity

2. Negligent Act