Duty of Care
General Duty of Care
A reasonably prudent person under the same or similar circumstances
Effect of Custom or Usage
Can be used to show how a reasonable person should have behaved, but is not conclusive evidence that the defendant fell short of the standard of care
Definition
Foreseeable consequences of the defendant's actions
"But for" test
The defendant is an actual cause of the plaintiff's injury when it would not have occurred but for the act
Conduct Required
Subjecting plaintiff to threat of physical impact or severe emotional distress likely to cause physical symptoms
Standard of Care for Professionals?
Professionals must exercise the knowledge and skill of a member of the profession in good standing
Res Ipsa Loquitur
The fact that an injury occurred may create an inference of breach if (1) the accident causing the injury is a type that is normally associated with negligence and (2) the negligence is attributable to the defendant
Forseeability
Harmful results are foreseeable if they are the normal incidents of an within the increased risk from the defendant's actions
Merged Causes
When two negligent acts bring about an injury and either one alone would have sufficed, either of the acts is an actual cause of the injury if it was a "substantial factor" in bringing it about
Fault Required
Negligence in creating risk of physical injury to the plaintiff
Child Standard of Care
Children must conform to the standard of a child of like age, intelligence, and experiance
Statutory Standard of Care
Unexcused violation of the statute established presumption of breach
Intervening Forces
Unascertainable Causes
When two acts were negligent but it is not clear which caused the injury, the burden shifts to the defendants to show that their negligent act was not an actual cause
Damages Required
Defendant's conduct generally must cause physical symptoms from the distress
Standard of Care for Children Engaging in Adult Activities
That of a reasonably prudent person
Theories of Products Liability
1. strict liability;
2. negligence;
3. intent;
4. breach of implied warranties; and
5. representation
Definition of Licensee
Those who come onto the land with express or implied permission but for their own purpose such as social guests
Bystander Recovery - Outside Zone of Danger
Plaintiff bystander must (1) be closely related to the injured person, (2) be present at the scene, and (3) observe or perceive the injury
Statutory Standard of Care
May be used in place of the general standard of ordinary care if (1) the plaintiff is within the class that the statute was intended to protect and (2) the statute was designed to prevent the type of harm suffered
Vicarious Liability (principal-independent contractor)
Generally a principal is not vicariously liable for the torts of an IC unless:
1. principal attempts to control the manner and method in which the independent contractor works;
2. inherently dangerous activities; or
3. nondelegable duties
Common Foreseeable Intervening Forces (4)
1. medical malpractice;
2. negligent rescue;
3. protection/reaction forces; and
4. consequent disease/accident
Definition of Invitees
Those entering as members of the public or for a purpose connected to the business of the landowner
Bystander Recovery - Within Zone of Danger