Download Neglignce

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.”
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
• 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
• 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
•
•
•
•
To Children
To Trespassers
To Licensees
To Invitees
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
Trespasser
• 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.
Licensee
• 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
Invitee
• 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
• 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
The sale of
glue with
benzene to a
minor is
prohibited
• 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
Causation
• 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
• An independent force may break the
connection between a wrongful act and
injury to another
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
• Abnormally Dangerous
Activities
• Keeping of Wild Animals
• Manufacturer or
Merchant Who Sells
Goods in a Defective or
Dangerous Condition to
Consumers