Torts Of Negligence

Front 1

Negligence: Prima Facie Case

Back 1

Five elements are required to establish a prima facie case of negligence:
1. Act of omission.
2. The existence of a legal duty to Plaintiff for a reasonable standard of care.
3. Breach of Duty.
4. Actual Cause ('but for' actions of Defendant).
4. Proximate cause, a showing that the harm is within the scope of liability.
5. Harm in the form of actual damages to person or property.

Front 2

Duty of reasonable standard of care:

Back 2

Determined by 'reasonable person' standard: Conduct yourself as a reasonable person would under same or similar circumstances. This is an objective standard regardless of whether D believed in good faith s/he was being careful.

Front 3

Standard of Care Issues:

Back 3

The following issues are considered under standard of care:
1. Foreseeability: The greater the foreseeable risk of harm and the greater the harm, the greater the care required.
2. Community Custom of Care: Shows evidence of standard owed, but reasonable person test remains.
3. Compliance with Statute: May show negligence or a minimum compliance, but "due care" still that of reasonable person under specific circumstances.

Front 4

Who is subjected to Standard of Care:

Back 4

Anytime there is foreseeable risk to anyone, all people are subject to the rule.
1. Physically Disabled: Reasonable person standard applies. Disability treated as circumstance in deciding how a reasonable person would act.
2. Mentally Disabled: No allowance for, must be medication compliant.
3. Children: Judged as others by same age, intelligence and experience in terms of reasonable person.
4. Voluntarily Intoxicated:Disregarded in determining liability. Persons using alcohol/drugs held to same reasonable person standard.
5. Persons with superior knowledge, expertise or training: Held to the higher standard of others in same field.

Front 5

To whom is duty of care owed:

Back 5

Generally, whenever there is an act or circumstance bringing foreseeable risk of injury to the person or property of another, duty of care is owed.

Front 6

Unforeseeable Plaintiffs:

Back 6

Generally, if a reasonable person would not have seen injury to anyone by conduct, no duty owed to the unexpected. However, courts have split in whether defendant could have reasonably foreseen danger to someone. This often depends on circumstances of case and findings by triers of facts.

Front 7

Unforeseeable Plaintiff: Broad View

Back 7

Andrews View in landmark Palsgraf case:
If duty owed to anyone, duty owed to all.
D responsible regardless of whether the reasonable person would have foreseen risk of harm in circumstances to P, so long as P's harm proximately caused by D's negligence toward someone.

Front 8

Unforeseeable Plaintiff: Narrow View

Back 8

Cardozo View in Palsgraf:
Duty owed to foreseeable Plaintiff in 'zone of danger.' Before D held liable under any duty of care, it must appear that a reasonable person would have foreseen a risk of harm to P or class of persons to which P belongs.

Front 9

Foreseeability:

Back 9

The actor or defendant as a person of ordinary intelligence, should reasonably have foreseen that his/her negligent act would harm others, whether by the event that transpired or some similar occurrence, regardless of what the actor surmised would happen in regard to the actual event or the manner of causation of injuries.

Front 10

Breach of Duty:

Back 10

Three elements:
1. Act of Omission
2. Duty of Care
3. Breach of Duty by creation of unreasonable risk of harm.