Negligence

1. Negligence

2. Elements of Negligence 1. Duty & Breach • Duty: Who are the parties? Does the law recognize a relationship between them such that one party owes the other a duty of care? • Breach: What is the standard of care, and did D breach it? 2. Causation in Fact & Proximate Causation 3. Injury & Damages

3. Who is the Reasonable Person?

4. The Reasonable Person Standard Are any of the following relevant? • Mental impairments: insanity (Williams); lack of intelligence (Vaughan); disability (Lynch) • Serious physical impairments (Davis; Kerr) • Superior skills or abilities (Fredericks)

5. Lynch v. Rosenthal Two questions to which a victim P’s mental state might be relevant: • Was the D obliged to take precautions based on his knowledge of P’s mental disability? Speaks to P’s case for negligence. • Was the P contributorily negligent? In other words, did he act reasonably by using all of his (limited) faculties to protect himself? Speaks to D’s defense.

6. Problem: Weirs v. Jones County A P is unable to read English, and drives over a bridge with a sign reading “Bridge Unsafe.” The bridge collapses, and P is injured. Jury is instructed that if the sign was “sufficient to notify a person exercising ordinary and reasonable care … then it would make no difference whether the plaintiff could read said [sign] or not.” Jury is also instructed that if a person exercising reasonable care could read the sign, but P could not, he could be found contributorily negligent. • Were the jury instructions correct? What standard of care do we expect of a P who cannot read English?

7. Problem: Weirs v. Jones County Court finds that the signs “were sufficient to notify persons exercising ordinary care that the bridge was unsafe,” and that “[t]ere is no varying standard of care … so as to warn the blind or those who are unable to read.” Likewise, with respect to contributory negligence, the court held, “The plaintiff cannot be allowed to claim that some standard of care shall be applied to him which is not applicable to persons in general.”

8. Superior Abilities Rest. 2d §298: The actor must utilize with reasonable attention and caution not only those qualities and facilities which as a reasonable man he is required to have, but also those superior qualities and facilities which he himself has. Rest. 3d §12: If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person. Are these consistent with Fredericks v. Castora?

9. Hypo: The Short Cab Driver A taxicab driver is 4 feet 10 inches tall. His taxi kills a young boy. He defends on the ground that his short stature made it impossible for him to see the boy until it was too late. • What result? Liability, in Mahan v. State (Md. 1937): “It is true that persons of small stature may and do lawfully operate automobiles, but if that condition makes it more difficult … it imposes upon them the duty of exercising greater watchfulness … than would be necessary for one of normal stature.”

10. Disabilities under Rest. 3d • The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability. • An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child. So … those with mental impairments are held to the standard of a reasonably prudent person, while those with physical impairments are accommodated. Why the distinction between physical and mental impairments?

11. Hypo: Drunk Driving Prof. Sawicki and Dean Kaufman meet after class for a beer. Prof. Sawicki has more than a few drinks, and leaves the bar slurring and stumbling. Driving home, she crashes her car into a pedestrian. • What standard of care will she be held to, and why?

12. The Reasonable Person Standard Generally: • The standard of care we expect of defendants is an objective standard– not a subjective “to the best of their ability standard.”

13. The Reasonable Person Standard As applied to mental limitations: • Insanity: No defense.An insane person will be held to the standard of care of a sane person. Williams. • Stupidity: No defense.A stupid person will be held to the standard of care of a reasonable person. Vaughan. • Mental Disability: Historically, no defense. • However,A mentally disabled P may be able to bring a negligence suit where others would not. Lynch.

14. The Reasonable Person Standard Generally: • The standard of care we expect of defendants is an objective standard– not a subjective “to the best of their ability standard.” • We assume the person has normal intelligence and basic knowledge, and assign to him the physical attributes he has. • If he has any special skills or abilities beyond those of the reasonable person, he is expected to use them. Note: Rest. 3d moves away from the “reasonable person” standard to the question of what is reasonable care under the circumstances.

15. The Reasonable Person Standard: Age

16. The Reasonable Person Standard: Age Possible Rules: • Child of like age, intelligence, and experience • Under age X, no liability; above age X, treated as a reasonable child of like, age, experience • See Rest. 3d under-5 rule • Under age X, no liability; above age X, some rebuttable presumptions • See Dunn v. Teti “rule of sevens”

17. Research Assignment What rule does Illinois apply in evaluating the negligence of minors? • What are your substantive findings? • What were your research methods?

18. The Reasonable Person Standard: Age According to Purtle v. Shelton, an “adult activity” is one that is: • Dangerous; and • Normally engaged in only by adults.

19. The Reasonable Person Standard: Age Hypothetical: A 15-year old D is taking driver’s education for the first time. A pedestrian unexpectedly walks through the empty lot where the D is driving (his driving instructor is in the passenger seat). D mistakenly steps on the gas, rather than the brake, and the pedestrian is seriously injured. D claims he should be held to a minor’s standard of care, because he was engaged in an activity (school driver’s ed course required for those under the age of 18) that by definition is limited to minors. What standard of care should D be held to?

20. The Reasonable Person Standard: Age What standard of care should D be held to? In Stevens v. Veenstra (Mich. App. 1998), the court said D should have been held to an adult standard. “Defendant defines the activity he was engaged in too narrowly … [he was] engaged in the adult activity of driving an automobile, and we do not consider the reasons behind his undertaking the activity to justify the departure from the general rule that all drivers, even minors, are held to an adult standard of care.”