Negligence

Elements of Negligence

1. Duty - Def owed a legal duty to plain

2. Breach - Def breached legal duty by failing to meet standard of care

3. Causation (Factual/Proximate) - Breach is factual/proximate cause of plain’s injury

4. Damages - Plain’s injury results in compensatory damages

Ordinary Duty of Care

An actor ordinarily has a duty to exercise reasonable care when actors conduct created a risk of physical harm

• Or, “What one owes to another”

General Standard of Care

An actor has a duty to adopt all reasonable precautions to minimize foreseeable risks

Three factors to assess:

1. Was risk foreseeable?

2. Was there any reasonable precautions that could have prevented the harm?

3. Severity of the harm

EX: Adams v. Bullock

• [summary]

Hand Formula

B < PL

The burden of precautions is less than the probability of the accident and magnitude of loss

EX: Texting while driving

• B = very low burden of taking precautions

• P = high probability of accident

• L = harm can be significant, leading to death

Loosely connected to standard of care

Reasonable Care (Derived from Hand Formula)

A person acts negligently if they do not exercise reasonable care under all circumstances. Primary factors to consider are: foreseeable likelihood (P) that conduct will result in harm, foreseeable severity (L) of any harm that may ensue, and the burden (B) of precautions to eliminate or reduce risk of harm.

Reasonable Person - Physical Disability

R3D §11

a. Conduct of an actor with a physical disability is negligent ONLY IF the conduct does not conform to that of a reasonable person with the same disability

b. Conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent ONLY IF such condition was reasonably foreseeable to the actor

• EX: Hammontree v. Jenner

  • [Summary]

c. Actor’s mental or emotional disability is NOT considered when determining negligence UNLESS actor is a child

Reasonable Person - Children

R3D §10

a. Child’s conduct is negligent if it doe not conform to that of a reasonably careful person of the same age, intelligence, and experience

TWO EXCEPTIONS:

b. The child is less than 5 years old, OR

c. The child is engaging in dangerous activity that is usually undertaken by adults

What the “Reasonable Person” HAS

The reasonably prudent person has the defendant’s

• Superior knowledge, skills, or abilities;

• Skills of profession, when acting as a professional;

• Youth when engaged in a non-adult activity; and

• Physical disabilities

What the “Reasonable Person” DOES NOT have

The reasonably prudent person, however, does not have the defendant’s

• Inexperience;

• Mental or emotional Disability

• Inattention or clumsiness;

• Old age;

• Youth when engaged in an adult activity; or

• Wealth or poverty

Roles of Judge and jury

• Fact finding: jury must make factual determinations when facts are reasonably debatable

• Mixed questions of law and fact: the jury must apply law to facts to determine whether facts satisfy legal rule

• Minds may differ on reasonable care, it is up to jury to make that decision

Bright line rule

Easily predictable, allows judges to decide as a matter of law

Custom

R3 §13

Negligence per se

Excused violations

Constructive Notice