Chapter 8 Negligence

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}}}}} BREACH OF DUTY OF CARE

Definition of negligence- conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm

Reasonable Person Standard- degree of care that a reasonable person would exercise in a given situation

Duty to Act- except in a special circumstances, no one is required to aid another in peril

NEGLIGENCE AND NEGLIGENCE PER SE

REASONABLE PERSON STANDARD

Children and those with a physical disability- must conform to conduct of a reasonable person of like age, disability, intelligence, and experience

mental deficiency- the reasonable person standard applies despite the disability

superior skill or knowledge- professionals must exercise the same care and skill normally possessed by members of their professions

emergencies- the reasonable person standard applies, but the emergency is considered part of the circumstances

Violation of statute- standard of contact may be set by statute or regulation

DUTIES OF POSSESSORS OF LAND

UNDER SECOND RESTATEMENT (MAJORITY):

duty to trespassers- not to injure intentionally

duty to licensees- to warn of known dangerous conditions licensees are unlikely to discover for themselves

duty to invitees- to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover

UNDER THIRD RESTATEMENT (MINORITY):

(except for "flagrant trespassers,") a land possessor owes a duty of reasonable care to entrants on the land with regard to:

conduct by the land possessor that creates risks to entrants on the land

artificial conditions on the land that pose risks to entrants on the land

natural conditions on the land that pose risks to entrants on the land

CAUSE

Res Ispa Loquitur - means " the thing speaks for itself." This rule of circumstantial evidence permits the jury to infer both negligent conduct and

factual cause

but for test

SCOPE OF LIABILITY (proximate cause)

Foreseeability- no liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belong

Superseding Cause

HARM

Burden of proof- plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest

harm to legally protected interest- courts determine which interests are protected form negligent interference

Defenses to negligence

contributory negligence-failure of a plaintiff to exercise reasonable care for his own protection, which in a few states prevents the plaintiff from recovering anything

comparative negligence- damages are divided between the parties in proportion to their degree of negligence; applies in almost all states

assumption of risk- plaintiff's express consent to encounter a known danger, some states still apply implied assumption of the risk

STRICT LIABILITY

DEFINITION- liability for non intentional and non negligent conduct; based on the dangerous nature of the activity and not on any particular fault

activities giving rise to strict liability

abnormally dangerous activities-involve a high degree of serious harm and are not matters of common usage

keeping of animals- strict liability is imposed for wild animals and usually for trespassing domestic animals

DEFENSES TO STRICT LIABILITY

Contributory Negligence- is not a defense to strict liability

Comparative Negligence- most states apply this doctrine to some types of liability cases

Assumption of Risk- Under second restatement, is a defense to an action based upon strict liability if the assumption is voluntary.

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