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5 Cards in this Set
- Front
- Back
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When a statute codifies the standard of care due to others, and a D is violation of the statute, what are the methods the court will handle this case?
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ordered from most to least prevalent
1. Negligence Per Se - when the 4 elements are proven, negligence per se must be declared by the court and NOT left to the jury 2. Rebuttable Presumption of Negligence (prima facie negligence) - the violation of the statute results in a "presumption" of neglgience which can be rebutted by one of the "excuses" 3. evidence of negligence - violation of the statute results in just "evidence" of negligence which is left up to the jury to decide if it is or isnt neg. |
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what are the elements to prove negligence per se?
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1. was there a statute and what is its purpose?
2. what "harm(s)" was the statute designed to prevent 3. who was the statute designed to protect? 4. Is P a member of the benefited class the statute was enacted to protect was was his injuries the type the statute was enacted to prevent? |
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What if there is a statute which codifies a standard of care that does not exist under common law?
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We use the appropriateness test
- used to determine whether the "new duty" is appropriate |
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What is the appropriateness test?
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1. existence of a common law duty
2. citizens had notice of what conduct is required of them 3. possbility for liability to breated w/o fault 4. was injury as direct or indirect result of breach of the statutory standard of care? 5. practicality and desirability |
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what are the 5 excuses allowed for D to "rebut the assumption" of prima facie negligence when D has violated a statute
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1. D was faced with a sudden emergency not of his own making
2. violation was reasonable because D was incapacitated (minor, disabled) 3. compliance with the statute would have resulted in greater physical harm to D 4. D neither knew or should have known of the occasion for compliance 5. D acted Reasonably but the violation happened anyway. |
