TORTS OUTLINE-BERNABE
v Elements of the Cause of Action
Ø Duty
Ø Breach of Duty
Ø Cause in Fact
Ø Proximate Cause
Ø Damages
v Duty:
Ø Obligation to exercise reasonable care to avoid causing foreseeable harm to other people and/or their property
v Breach of Duty:
Ø Failure to perform their duty
v Standard of Care
Ø Emergencies
§ When acting under the belief that one’s life is in danger, the law places no emulation upon an ordinary man in this situation. He is not required to exercise unerring judgment, which would be expected of him, were he not confronted with an emergency requiring prompt attention.
Ø Children
§ Standard of child of similar age, experience, and intelligence.
§ If child is conducting an adult activity child is held to the reasonable person standard.
Ø Professionals
§ In General.
· The standard of care required of an individual is the conduct of the reasonably prudent man under the same or similar circumstances. The quantity or degree of care required may vary with the attendant circumstances.
§ Attorney
· An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort. In attorney negligence cases the P-client must show that but for the attorney’s negligence the client would have been successful in prosecuting or defending the claim.
§ Medical
· In medical malpractice, a term referring to ordinary negligence concepts in the area of medical diagnosis, treatment, and the like, the duty of care is generally formulated as that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances. The locality rule states that the conduct of members of the medical profession is to be measure solely by the standard of conduct expected of other member of the medical profession in the same locality or the same community.
§ Disabled
· Reasonable person with that disability standard, i.e. reasonable blind person standard.
§ Mental Disability
· The effect of mental illness must be such as to affect the person’s ability to understand and appreciate the du
ent is within the class of risks that the statute seeks to prevent
Ø A duty to obey the criminal law is not equivalent to a duty in tort.
Ø If negligence per se test is met there are two exception
§ Statutory compliance would be more dangerous than statutory violation, then don’t borrow the statute.
§ If compliance is impossible under the circumstances, don’t borrow the statute.
v Is there a (limited) duty to “act”?
Ø Failure to prevent the voluntary acts of another does not create liability.
§ i.e. a university doesn’t have the duty to control the voluntary acts of a student, even if the student is a minor.
Ø Courts don’t like to impose liability for not acting…Perry v. SN and SN
Ø Duty to act exists when
§ 1. Đ causes peril
§ 2. Common carrier or innkeeper
§ 3. Family relationship, landowner-invitee
Even if there is no duty, but you attempt a rescue, you must conduct the rescue reasonably.
