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11 Cards in this Set

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What is Negligence?
Negligence does not involve specific forbidden acts, but rather may be any conduct that creates an unreasonable risk of harm and causes actual harm to others.
A person must establish five elements in a negligence claim: The burden of proof is on the Plaintiff to show by a preponderance of the evidence that more likely than not the defendant:
1) Has A legal duty [Duty]
2) To provide a Standard of care; [Standard of Care]
3) Breached this duty by negligence; act or omission [Breach]
4) Actual causation; from breach of duty [Cause in Fact]
i. But For
5) Proximate causation. [Legal Cause]
6) Plaintiff had Actual damages from the breach [Damages]
How much care must be taken?
The Duty of Care (Van Detta Two pieces of Reasonable Care: Risk must be 1. Recognized by defendant and 2. Action taken to minimize risk)
1. The standard of reasonable care, which defines the scope of the general duty of care of all people, requires a person to exercise the amount of care that a reasonably prudent person would exercise under the circumstances.
Does reasonable care vary?
The standard of care for negligence actions is always reasonable care, but the amount of care which is reasonable varies in proportion to the danger of the activity and the circumstances. Stewart v. Motts.
What about care in an emergency situation?
For a person confronted with a sudden emergency which he has not created by his own negligence, reasonable care is the amount of care a reasonably prudent person would exercise in a similar emergency. Lyons v. Midnight Sun Transp. Servs. Inc. Emergencies, like dangerous instrumentalities, are simply circumstances that affect the amount of care which the reasonable care standard requires
What reasonable care must a person with a physical disability take?
For a person with a physical disability, reasonable care is the amount of care a reasonably prudent person with the same disability would exercise under the circumstances. Shepherd v. Gardner Wholesale, Inc.
(1) The standard of reasonable care also requires a person with a physical disability to take precautions which a reasonably prudent person with that disability would take under the circumstances. Roberts v. State of Louisiana.
For an adult with a mental disability, the standard of reasonable care is what?
For an adult with a mental disability, the standard of reasonable care requires the same amount of care that it requires of adults without mental disabilities, regardless of the person's inability to control or understand the consequences of his actions. Creasy v. Rusk.
(1) On the other hand, if a person has more than the minimum attention, perception, memory, knowledge, intelligence, and judgment that the reasonable care standard requires, he must exercise those superior qualities in a manner reasonable under the circumstances. Hill v. Sparks.
What care must a child take?
A child's duty is generally to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the circumstances. Robinson v. Lindsay.
I. However, when a child engages in an inherently dangerous activity, or an activity which is normally one for adults only, courts will hold the child to an adult standard of care. Robinson v. Lindsay. [Van Detta refers to the rule of law here as minors over 14 are presumed capable og negligence. Between 7-14 presumed incapable of it and under 7 are incapable as a matter of law (non-rebutable presumption]
The unexcused violation of a statute which defines the standard of care for a case constitutes what?
In general, the unexcused violation of a statute which defines the standard of care for a case constitutes negligence per se. Martin v. Herzog. [statutory language can establish the standard of care required and show a breach per se, it doesn’t end the case because you still have to establish breach, cause in fact, proximate cause and harm. It is different because you are borrowing from other parts of the law. If the statute was for tort law specifically, then the standard of care is established specifically and not borrowed ]
There are several ways to avoid the inflexibility of the negligence per se doctrine. Name one.
(1) Courts may properly construe some statutes to be subject to the negligence per se doctrine only under ordinary conditions, but not when extraordinary circumstances occur. Tedla v. Ellman.
(2) An excused violation of a statute does not constitute negligence. Legally acceptable excuses include:
• a person's incapacity to comply;
• his reasonable ignorance of the occasion for compliance;
• his inability to comply even after making a reasonable attempt to do so;
• an emergency not due to his own misconduct; and
• the fact that compliance would involve greater risks than noncompliance. Impson v. Structural Metals, Inc. adopting restatement.
(3) When a statute sets forth requirements of conduct and there is a clear intent to impose civil liability for its violation, a court must apply it as the standard of care. When there is no clear intent to impose civil liability, a court may choose whether to adopt or reject its requirements to define the standard of care. Rudes v. Gottschalk.
(a) For a statute to be appropriate as the standard of care for a case, the injured party must be within the class of persons the statute is intended to protect, and must suffer the type of injury the statute is intended to prevent. Wright v. Brown; Haver v. Hinson. [Also a third element found in Tedla that gives one a justification/excuse or non compliance.
For a statute to be appropriate as the standard of care for a case, the injured party must be
For a statute to be appropriate as the standard of care for a case, the injured party must be within the class of persons the statute is intended to protect, and must suffer the type of injury the statute is intended to prevent.