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Torts. Chapter 4. Negligence. An unintentional tort Involves inattention or carelessness A failure to use due care The Restatement defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” .

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Chapter 4

  • An unintentional tort
  • Involves inattention or carelessness
  • A failure to use due care
  • The Restatement defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”
examples of negligence
Examples of Negligence
  • Carelessly drive car
  • Doctor carelessly operates, fails to close wound, patient bleeds to death
  • Slip and fall
  • Social Host Liability
  • Negligent Hiring, Negligent Supervision
reasonable person standard
Reasonable Person Standard
  • A duty to act like an ordinary, prudent, reasonable, person, who would take precautions against creating an unreasonable risk. The duty exists only to foreseeable plaintiffs
  • Children - must conform to the standard of a reasonable person of like age, intelligence, and experience under the circumstances.
  • Persons with Physical Disabilities - The standard is that of a reasonable man under like disabilities.
  • Persons with Mental Disabilities - Held to the standard of a reasonable person who is NOT mentally deficient.
  • Professionals - Held to the same skill and care normally possessed by members of their profession.
duty to act
Duty to Act
  • No Affirmative Duty to Act
  • Exceptions
    • One who gratuitously acts for the benefit of another, is then under a duty to act like an ordinary, reasonable person, and continue the assistance
    • Special Relationship, i.e, spouse, child
    • Common Carrier
    • Places of Public Accommodation
    • Peril Due to Defendant’s Negligence
landowners duties
Landowners’ Duties
  • To Children
  • To Trespassers
  • To Licensees
  • To Invitees
attractive nuisance
Attractive Nuisance
  • Special duty to trespassing children
    • Where there is a dangerous condition present on the land which the landowner is or should be aware
    • The landowner knows that young persons frequent the vicinity
    • The condition is likely to cause injury
    • The expense in remedying the situation is slight compared with the magnitude of risk
  • Someone on the land without permission
  • No duty to inspect the land to protect unknown trespassers
  • Duty not to willfully or wantonly injure a trespasser.
  • A person on land for own purposes or benefit, but with landowner’s permission
    • Higher Duty owed
    • Duty to warn of dangerous conditions the landowner knows about, and conditions the licensee does not know about and is unlikely to discover
    • Salesman, Avon Lady, Social Guest
  • Someone on the property as of right, either because it is a public place or it is a business open to the public
    • Highest liability
    • Owner has a duty of reasonable care to protect against dangerous conditions about which the possessor knows or should know about, and which the invitee is unlikely to discover
    • Business visitor, contractor, swimmer at beach
res ipsa loquitur
Res Ipsa Loquitur
  • A circumstantial evidence doctrine
  • “The facts speak for themselves”
  • The fact that a particular injury occurred may itself establish a breach of a duty owed.
  • Defendant’s liability is inferred
  • Plaintiff establishes that the accident causing the injury is the type that would not ordinarily occurred without negligence
negligence per se
Negligence Per Se
  • An act or failure to act in violation of a statute is Negligence Per Se
  • The standard of conduct required by the statute is the duty the defendant owes the plaintiff
  • A plaintiff must be in the class intended to be protected by the statute

The sale of glue with benzene to a minor is prohibited

Causation in fact - Did the injury occur because of defendant’s act or would it have occurred anyway. Was defendant’s conduct the ACTUAL CAUSE of the injury. “But for” test. EX. Failure to provide a fire escape is a cause of death of one who is unable to flee a fire but is not a cause of death of one who suffocated in bed

Proximate Cause - A defendant is liable for all harmful results that are normal, foreseeable incidents caused as a result of his acts. Test is based on foreseeability. EX. Defendant speeding on busy street, pedestrian steps in front. Defendant. has no time to stop and swerves, hits parked truck that propels into pedestrian. Liable.

superseding intervening causes
Superseding Intervening Causes
  • An independent force may break the connection between a wrongful act and injury to another
defenses to negligence
Defenses to Negligence
  • Contributory Negligence - Complete bar of recovery if Plaintiff is negligent.
  • Comparative Negligence
    • Pure - Plaintiff ’s $ damages reduced by fault
    • 50% Rule - When Plaintiff is more than 50% negligent, plaintiff recovers NOTHING
  • Assumption of Risk - Athlete assumes the risk of getting injured; race car driver assumes the risk of a crash
strict liability liability without fault
Strict Liability - Liability without Fault
  • Abnormally Dangerous Activities
  • Keeping of Wild Animals
  • Manufacturer or Merchant Who Sells Goods in a Defective or Dangerous Condition to Consumers