Negligence in Court Systems and the Standard of Care

1. Chapter 1 Negligence C H A P T E R 1 Negligence

2. Three Types of Law • Legislated law • That passed by legislatures (federal, state, local) • Regulatory law • That passed by regulatory agencies (e.g., health department) • Common law • That created by precedence of the courts

3. Court System • Criminal court • Brought by the state • Defendant is sentenced to jail, fined, and so on • Beyond a shadow of a doubt • Civil court • Brought by another citizen • Defendant pays damages • By a preponderance of the evidence (continued)

4. Court System (continued) • Federal court • Federal laws • Issues that cross state lines • Issues that have significant costs • State court • State laws

5. Negligence • Part of tort law: Wrongdoing that leads to injury • Negligence: An unintentional tort • State law • The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation

6. Elements of Negligence • Duty: Relationship • Breach of standard of care: What a normal, prudent person would do in the same or similar circumstances • Damage: Injury, damage, or loss (must be in terms of money) • Proximate cause: Connection between breach and damage; shows that the breach caused the damage

7. Types of Breaches • Nonfeasance: Not doing something that one should have done, which results in injury • Misfeasance: Accidently creating an injury • Malfeasance: Intentionally doing something that causes an injury

8. Standard of Care • Industry standard: What should be done, as identified by an association • American Camping Association • Law or regulation: A requirement that something be done a certain way • Health department • Certifications, licenses, and so on • Red Cross Lifeguarding

9. Levels of Negligence • Ordinary: What an ordinary, prudent person (a perfect person) would or would not do in the same or similar circumstances • Gross: What a reckless person would or would not do in the same or similar circumstances • Willful and wanton: What a person does on purpose or with complete disregard for another

10. Learn Standard of Care • Become certified, qualified, licensed • Learn the industry standards • Join trade organizations • Attend conferences and training sessions • Read the literature • Keep training and adding experience

11. Types of Supervision • General: Overseeing the activity and all participants • Specific: One-on-one, direct involvement with a participant • Transitional: Moving from general to specific or specific to general; no supervision is occurring

12. Components of Supervision • Placement and ratio of supervisors • Understanding the activity • Qualifications (training and experience) • First aid and rescue abilities • Special training for the activity

13. Conduct of Activity • Adequacy of progression • Maturity and condition of participants • Psychological (e.g., fear) • Physical (e.g., tired, hungry, thirsty, injured) • Mental (e.g., understanding of the activity) • Safety equipment and environmental conditions

14. Respondeat Superior • Holds the employer liable for the acts of the employee • The employer should hire qualified staff. • The employer should train staff. • The employer should be aware of what employee is doing. • Must be within the scope of his duty • Ultra vires act: An act outside the scope of duty

15. Foreseeability • Should the supervisor have been able to predict the probability that an accident would occur? • Anticipate • Prepare • Prevent

16. Summary • Four components of negligence • Duty • Breach of standard of care • Proximate cause • Injury, damage, or loss • All four components must be present for negligence to occur.