Torts
Lung
Spring 2011
I. Negligence
General Negligence Rule Statement: Negligence is any conduct that creates a foreseeable and unreasonable risk of harm toward another. In order for the plaintiff to establish a prima facie case of negligence against the defendant, she must prove the following elements: 1) that the plaintiff owed the plaintiff a legal duty of care; 2) that defendant breached the duty of care by engaging in a conduct that failed to conform to the applicable duty of care; 3) defendant’s conduct was an actual cause of plaintiff’s injury; 4) defendant’s conduct was the proximate cause of plaintiff’s injury; 5) plaintiff suffered a legally compensable harm.
A. Duty
a. Did the defendant owe a duty of care to the particular plaintiff in the case?
Defendant owes a duty to a foreseeable plaintiff. To be a foreseeable P, the P must be within the zone of danger created by D’s breaching conduct. To determine whether the P is within the zone of danger, factors such as time (has too much time elapsed?), distance and relationship are considered if relevant. Palsgraff
b. If so, what standard/duty of care was owed?
I. Rule for General Duty of Care: If foreseeable plaintiff, generally, the standard of care owed in a negligence case is what a reasonably prudent person would do under the same or similar circumstances to prevent or minimize foreseeable and unreasonable risks of harm.
A. Dangerous Instrumentalities
– The standard remains the same (the RPP standard) whether danger is high or low.
-What changes with the danger is the amount of care that a reasonable person would take. If the foreseeable danger is high, the reasonable person will ordinarily exercise a greater degree of care than if the foreseeable danger is low.
Stewart v. Motts- Stewart stopped at defendant's auto shop and offered to help Motts repair an automobile fuel tank. The car backfired and burned the plaintiff.
The law recognizes only one standard of care in negligence actions involving dangerous instrumentalities-the standard of reasonable care under the circumstances.
B. Sudden Emergencies
– Emergency- sudden, unexpected and unforeseen happening or condition that calls for immediate action, and that was not created by the party seeking the instruction. Vehicle accident cases- sudden actions by other drivers, unexpected weather events, and roadway hazards.
-Standard of care is what a RPP would do under the circumstance of sudden emergency.
Bjorndal v. Weitman -Plaintiff was driving on highway looking for her father whose car had broken down. Defendant was driving behind plaintiff. When plaintiff saw her father, she slowed down quickly. Defendant then applied his brakes, but he ended up colliding with it.
C. Physical Disabilities
i) Known physical disabilities
– Standard of care is that of a RPP in the same or similar circumstances with that disability.
ii) Sudden Incapacities
-RPP standard under the same or similar circumstances.
-Where a person’s alleged negligence is caused by sudden physical incapacitation that is not foreseeable, there should be no liability.
iii) Superior physical abilities
– actor has strength and agility not possessed by normal people
– standard of RPP requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk.
D. Mental Capacity
i) mental disabilities
– person with mental disabilities is generally held to the same standard of care as a reasonably prudent non-disabled person
tute that triggers the doctrine of negligence per se, the statutory conduct is setting the standard and therefore replacing the reasonably prudent person. If all elements are satisfied,
When a court applies the negligence per se rule to a statute/ordinance/rule, the statute itself supplants the usual reasonably prudent person standard of care, and violation of the ordinance establishes breach. The effect of establishing negligence per se through the unexcused violation of a statute conclusively establishes the first two elements of the cause of action in negligence-breach and duty.
In order for a statute to substitute for the general duty of care, three elements must be met:
(1) the statute must clearly define the prohibited or required conduct that applies to the facts of the case;
(2) the plaintiff must belong to the class of plaintiffs that the statute is designed to protect; and
(3) the plaintiff must have suffered the type of harm that the statute was intended to protect against.
** If any of these three elements are not satisfied, the standard reverts back to the reasonably prudent person standard of care and the general breach analysis applies. Would RPP have violated the statute in same or similar circumstances?
However, if there’s a legally valid excuse, then the violation of the statute will not constitute breach and the plaintiff’s case will be dismissed. The legally acceptable excuses are:
