Negligence
· Duty=
o Standard of care-
o What duty do you owe to the rest of the world –
o reasonably prudent person standard (RPP)
o To act as a reasonably prudent person would under the circumstances
· Breach
o Falling below the standard
· Causation
o Actual: You must be actual cause
o Legal: Or you must be the legal cause (you set events in motion – through act or failure to act)
§ “But for” test
· Damages
o No nominal damages
o Must be actual damages in order to have a cause of action
o
· Explore Defenses
o Contributory negligence
o Assumption of the risk
Establishing negligence=In order to establish there is Duty and that Duty has been Breached
Negligence can be established by
· establishing Duty/Breach of duty, or
· Negligence per se.
RPP
Reasonable Prudent Person RPP Standard
· Requirement to “act as a reasonably prudent person would in the same or similar circumstances.”
· Negligence exists when damage occurs from a defendant’s conduct that has fallen below the relevant standard of care.
· Duty: Standard of Care RPP
· Malice is irrelevant, the standard is objective.
· Can you be negligent for failing to act, when a RPP would have done so? Yes.
· You can be negligent for failing to anticipate an emergency: Hence fire extinguishers
· Failing to take precautions
· An objective standard:
o We consider the average person in the community – not your intent, feelings emotions.
o Could vary from district to district – so is it really objective?
o Results will vary in the objective standard only in grey areas
· If there is a physical disability we ask, how would a RPP with that same disability act?
· Did you recognize risk that a reasonably prudent person would recognize?
· HYPO: you throw a glass jar at a friend in the woods, it shatters and injures your friend, you are guilty of negligence. That jar was filled with dynamite and there was no reason to know that, not guilty of negligence.
· Insanity or mental deficiency not to be taken into account by jury
Public policy reasons
Allocate loss b/t two innocent parties to the party that caused the harm
Provides incentive for guardian’s of those people to restrain them.
Removes inducements to fake a mental disability to escape liability
Avoids administrative problems in attempting to identify and assess the significance of an actors disability
Forces person with disabilities to pay for the damage they do if they “are to live in the world.”
How do we measure a RP Child?
· How would a child of the same age, experience, intelligence and experience?
· We treat them as an adult if the conduct adult activities
A physical ailment will be considered.
A person with a physical ailment should act as a RPP with that ailment would.
Negligence Per Se – NPS
· When a statute, ordinance or regulation is used to establish a standard of care to determine if there is a breech of duty when determining negligence.
· Stands in for RPP
· Two pronged test for Negligence Per Se
1. The injury/harm was the type that statute was designed to protect against
2. Plaintiff must be within class of person the statute was intended to protect
Under NPS, the circumstances are irrelevant, you are guilty if you broke the statute.
We don’t apply our own reasonableness, we use that established by the statute.
· Hypo: Imagine a law that after a dog bite, the dog must be quarantined for ten days to determine if there is rabies involved. A dog is released before 10 days and involved in another dog bite, having nothing to do with rabies. Negligence per se cannot be used to prove negligence b/c of prong 1.
· A law designed to protect employee cannot be use as negligence per se to protect a visitor.
Excuses (defenses to NPS)
1. Emergency (not caused by defendant)
2. Compliance would involve greater danger than the violation (alternate hazard)
3. Actor neither knows nor should know of the occasion for diligence
4. Actor has some incapacity rendering the violation reasonable
5. After reasonable efforts to comply the part is unable to do so.
2. = If you deviate from standard b/c of an alternate hazards.
3. Your headlight when out.
If a law requires strict liability (you sold a defective product, no excuses for it, you are responsible for damages) the negligence per se can be used to establish negligence
Can negligent behavior on the part of the defendant enable a cross claim? Contributory negligence?
Negligence per se not applied to children, but it can be used for evidence.
Courts have discreti
ny states are creating vicarious liability b/t children who commit intentional harm and parents
o If you are a servant, and acting as an instrument for an employer, you are not liable (unless there was an intentional tort (?)
o Actions outside of the scope of employment do not count
· Joint and Several Liability
o Tortfeasors and ‘jointly and severally liable’
o Several b/c more than one tortfeasor
o Joint b/c each tortfeasor if fully liable for the entire damage
· Allocations of Liability Among Joint Tortfeasors
o Common law rule: pro rata 2 tortfeasors pay ½ 3 pay 1/3
o Most state have adopted Comparative Negligence and therefore use Comparative Allocation of Responsibility
§ Liability is divided up according to proportion of responsibility
§ In the absence of statute, if A is unable to pay, B and C must
§ Disagreement exists as to whether a negligent plaintiff shares the burden of a defaulted tortfeasor
§ Some states make a negligent plaintiff share, other state keep it on the defendant
· Impact of Settlement on Percentage Shares
o Some settlements act as satisfactions and some as releases
§ A satisfaction settlement results in full compensation for injury and extinguishes the claim against the tortfeasors
§ A release settlement surrenders a claim against only one or more of the tortfeasors
§ In a release settlement, plaintiff still reserves the right to collect against the rest
o How does a release settlement affect the remaining liability?
o Two Methods
1. Settling defendants damages are deducted from the total liability (This may increase the percentage remaining D’s are liable for)
§ Gives incentive to settle
2. Take the defendant’s lower percentage of settlement and deduct it from the total settlement as if he had paid in full
