Reasonable Person Standard
Basic Standard
reasonable care under all the circumstances
Custom
relevant but not decisive evidence of negligence
Impossibility Defense for Negligence Per Se
Failure to comply with a statute can be excused if it was impossible for the defendant to comply.
Violation of a statute is not negligence per se if the defendant's noncompliance was more safe than compliance would have been or the defendant could not possibly have complied with the statute.
Special Circumstances that may Create Duty (4)
1. Special relationship
2. Past behavior created expectation of aid
3. Rescue already undertaken
4. Initial Injuries caused (perhaps innocently) by the defendant
Invitee Def + Duty
-One who enters on another's land with the possessor's knowledge and for the mutual benefit of both
Duty: an owner or occupier of land has a duty to use reasonable care to protect an invitee from conditions that create an unreasonable risk of harm which the owner or occupier knows or by the exercise of reasonable care (investigation) would discover
Physical Traits
reasonable person is considered to have the same physical characteristics as the defendant; person is expected to know his physical handicaps and under a duty to exercise the care of a person with such knowledge
Proof of existence of a custom...
Proof of existence of a custom and practice coupled with evidence showing adherence to it may establish one has acted with due care.
Proof of existence of a custom and practice coupled with evidence showing failure to adhere to it may establish liability.
Joint & Several Liability
Two independent tortfeasors cause a indivisible harm; both actually contributed to the harm and you cannot separate the individual components.
Acting in concert (both scheme to carry out the negligent act) both are liable (even if only one did the harm)
Misfeasance v. Nonfeasance
Misfeasance: risk of harm arises out of one's own conduct (commission or omission); liability exists
Nonfeasance: risk of harm does not arise out of one's own conduct; liability does not exist
Exceptions: special relationships, contractual relations where party has agreed to provide aid, voluntary aid, voluntary undertaking, statute
Licensee Def. + Duty
-one who enters and remains on the land with the owner's (express or implied consent) for his (licensee) own convenience or on business with someone other than the owner
Duty: one who occupies or owns land has a duty not to injure licensee willfully, wantonly, or through gross negligence and in cases in which the owner or occupier had actual knowledge of a dangerous condition unknown to the licensee, to warn or to make safe, the dangerous condition; landowner doesn't need to inspect to look for unsafe conditions
Children
standard of care of a child of like age, education, intelligence, and experience
no negligence if <4 year old
adult activity: adult standard of care
Custom with Medical Negligence
Satisfying the duty of informed consent does not absolve medical service providers from liability from breaking the duty of care.
Liability standard usually evidence of custom required.
Shift from local to national standard.
Actual Causation
-the requirement that the plaintiff establish that the defendants' conduct actually did cause the harm or upset for which they sought recovery
-but for the defendant having acted at all, would the plaintiff nevertheless have suffered the same harm
Good Samatarian Statutes
Exempt licensed doctors, nurses, etc. who voluntarily & gratuitously render emergency treatment from liability for ordinary negligence (liability still exists for gross negligence)
All states require:
-assistance to police and fire officials on request
-a motorist to remain at the scene of an accident
-reporting of child physical and sexual abuse by certain categories of persons
Trespasser Def. + Duty
-one who enter another's property without any lawful authority, permission, or invitation
Duty: an owner of occupier of land only owes the trespasser a duty not to cause injury willfully, wantonly, or through gross negligence, no duty to warn or make safe dangerous condition of which the landowner is aware
Mental Intelligence
defendant must act as would a person with average mental ability, individual mental limitations are not considered
children are generally exception to this
Negligence Per Se
Violation of statute establishes duty and breach in negligence.
Standard of conduct based on the regulation whose purpose is to:
-protect a class of persons which includes the one whose interest is invaded
-protect the particular interest which is invaded
-protect that interest interest against the kind of harm which has resulted
-protect that interest against the particular hazard from which the harm results
1. General Causation
whether conduct or an event or a substance or a product is capable of causing the injury or condition alleged in the case
Privileged Entrants
-an entrant serving some purpose of the possessor generally treated as invitee (garbage man, mailman)
-one who comes the property under normal circumstances during working hours generally is treated as an invitee (census takers, health inspectors)
-firefighter's rule
Discovered/Known Trespasser Def. + Duty
-are discovered when they are actually noticed on the property by the owner or occupier
-viewed a s discovered if the owner or occupier is notified by info sufficient for a reasonable person to conclude that someone is on the property
Duty: once the landowner discovers the trespasser's presence on the land, the landowner comes under a duty of reasonable care
Learnd Hand Formula
B<PL (D is liable)
B>/=PL (D is not held liable)
B=investment in precaution
P=probability
L=magnitude of harm
Res Ipsa Loquitur Def. + Elements
the thing speaks for itself
1. exclusive control by defendant over instrumentality that causes injury
2. occurrence of injury would not ordinarily happen without negligence
3. it must not have been due to any voluntary action or contribution on the part of the plaintiff
2. Specific Causation
whether the event or substance or the product did, in fact, cause the particular condition or injury alleged in the case
Attractive Nuisance
-artificial condition on the land that might lure a child
1. dangerous condition present on the land of which the owner is or should be aware
2. owner knows or should know that young people frequent the vicinity of this dangerous condition
3. condition is likely to cause injury because of the child's inability to appreciate the risk
4. the expense of remedying the situation is slight compared with the magnitude of the risk
Firefighter's Rule
-Police and firefighters are generally treated like licensees based on public policy or assumption of risk; Cannot recover for landowner's failure to inspect or repair dangerous conditions
Exceptions:
-conduct was willful, wanton, or intentional
-injury was result of hidden trap
-owner was aware of hidden dangers and failed to warn
-negligence occurs at scene once responders are present
-rescuer was off duty and voluntarily stopped