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14 Cards in this Set
- Front
- Back
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Negligence |
Elements of a negligence claim are:
1. Defendant owed a duty of care to plaintiff 2. Defendant committed a breach of duty 3. Breach was actual and proximate cause of the injury experienced by plaintiff |
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Duty of Due Care |
In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would
foreseeably be at risk of harm from the defendant’s conduct –Aduty may arise if a special relationship existed between the parties •Examples of a special relationship: doctor-patient, lawyer-client, accountant-client |
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Breach of Duty of Due Care |
If a duty exists, then the question is whether the defendant acted as a reasonable person of
ordinary prudence would have acted under the same or similar circumstances –Reasonable person standard •The test focuses on defendant’s behavior, not defendant’s intent –Reckless behavior may be unreasonable |
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Special Doctrines |
•Premises liability
•Negligence Per Se |
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Premises Liability Cases |
Based on the duty a property owner or tenant has to those on the property
•Duty varies with type of person on property •Invitee (business visitor or member of the public) –Owner or tenant must exercise reasonable care for safety of his/her invitees |
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Premises Liability Cases (2) |
•Licensee (those on property for his/her own purpose)
–Owneror tenant obligated only to warn licensee of hidden, dangerous conditions •Trespasser (those on property illegally) –Owneror tenant owes no duty, but may not willfully injure trespassers |
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Negligence Per Se |
•The defendant’s violation of such laws may
create a breach of duty and may allow the plaintiff to win the case if the plaintiff –(1)was within the class of persons intended to be protected by the statute orother law, and –(2)suffered harm of a sort that the statute or other law was intended to protect against |
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Causation and Injury |
•Injuries may include bodily or emotional injury, and property or economic damage
•Causal link between the alleged misconduct and the injury requires: –Actual cause: plaintiff would not have been hurt “but for” defendant’s breach of duty (act or omission) –Proximate cause: plaintiff’s injury was foreseeable consequence of defendant’s act oromission |
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Causation and Injury (2) |
•An event that occurs after initial breach of duty may worsen a plaintiff’s injury
–Example: plaintiff injured in accident and whileunconscious, a thief steals the plaintiff’s wallet •If latter event is foreseeable, defendant will be deemed liable •If latter event not foreseeable, defendant will be absolved from liability –Example: Stahleckerv. Ford Motor Co. |
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Causation and Injury (3) |
•An important doctrine concerning causation is res ipsaloquitur (the thing speaks for itself)
•Res ipsa applies when: (1) defendant has total control ofthe instrument of harm, (2) harm would not occur in absence of negligence,and (3) plaintiff not responsible for his own injury –Example: after abdominal surgery, patient complains ofpain in abdomen and X-ray shows surgical clamp left in abdomen |
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Contributory Negligence |
•Contributory negligenceis the plaintiff ’s failure to exercise reasonable care for his/her own
safety –Example: auto accident in which defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully |
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Comparative Negligence |
•Contributory negligence used to be a complete defense, but most states enacted
comparative negligence systems in which a court or jury determines relative negligence of parties and awards damages in proportion to each party’s degree of negligence |
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Defenses: Assumption of Risk |
•Assumption of risk is plaintiff’s voluntary
consent to known danger –Example: plaintiff snowboards and breaks leg during a fall •Exculpatory clause: plaintiff expressly assumes risk of injury by a contract term that attempts to relieve defendant of a duty of care otherwise owed to plaintiff |
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Strict Liability |
•Imposing strict liability is a social policy decision that risk associated with an activity, especially
abnormally dangerous activities, should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk |
