THE NEGLIGENCE STANDARD
1. 283 Conduct of A Reasonable Man.
a. Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances
2. 289 Comment n. Inferior Qualities
a. If the actor is a child, allowance is made for his inferior qualities of mind and body, and the standard becomes that of a reasonable man with such qualities.
i. If the actor is ill or otherwise physically disabled, allowance is made for such disability.
ii. Except in such cases, the actor is held to the standard of a reasonable man as to his attention, perception, memory, knowledge of pertinent matter, intelligence, and judgment, even though he does not in fact have the qualities of a reasonable man.
3. 298 Necessity that the actor employs competence available.
a. The actor must utilize with reasonable attention and caution not only those qualities and facilities which as a reasonable man he is required to have, but also those superior qualities and facilities which he himself has. Thus, a superior vision may enable the actor, if he pays reasonable attention, to perceive dangers which a man possessing normal vision would not perceive, or his supernormal physical strength may enable him to avoid dangers which a man of normal strength could not avoid.
4. Age
a. If a minor is to be held to an adult standard of care he must be engaging in an activity that is
i. Dangerous to others and
ii. Normally engaged in by adults
b. Minors under the age of 7 years are conclusively presumed incapable of negligence, minors between 7 and 14 years are presumed incapable of negligence, but the presumption is a rebuttable one that weakens as the 14th year approaches, minors over 14 years are presumed capable of negligence, with the burden of proof placed on the minor to prove incapacity.
5. Contributory Negligence
a. Plaintiff’s whose own carelessness contributed to their injuries could collect nothing from a defendant
b. Last clear chance
i. A plaintiff was not barred from recovery by his own negligence if the defendant had the last good opportunity to avoid the accident through use of due care and failed to do so.
c. Comparative negligence
i. Reduces recoveries by negligent plaintiffs in proportion to their fault but did not prevent them from recovering altogether
d. Assumption of risk
6. (Third) 3 Negligence
a. A person acts with negligence if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of harm.
7. The Hand Formula
a. B v. PL
i. B-Burden/cost of taking necessary precautions
ii. P-Probability of the accident occurring
iii. L-liability/cost of damages
b. Test for contributory negligence
i. Adams v. Bullock – wire swinging
ii. Burden was larger than PxL, so plaintiff cannot recover
c. Cricket Ball Case
i. Same as bullock
d. LIRR, Heroic Measures
i. Buren was smaller (for railroad) than PxL so plaintiff could recover.
8. Negligence Per Se 286. Illustration 5
a. A statute, which requires railroad to fence their tracks, is construed as intended solely to prevent injuries to animals staying onto the right of way who may be hit my trains. In violation of the statute the A railroad fails to fence its track. As a result, two of B’s cows wander onto the track. One of them is hit by a train; the other is poisoned by weeds growing beside the track. The statute established a standard of conduct as to the cow hit by the train, but not as to the other cow.
9. Negligence Per Se 288B. Illustration 2
a. A statute, construed as intended only to prevent mis-breeding of animals, provides that hogs shall be confined by fences of specified strength. In violation of the statute,
-Three requirements must be met for Res Ipsa Loquitur
a) The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence and
b) It must be caused by an agency or instrumentality within the exclusive control of defendant and
· Few courts require it to be exclusive control
· Applies even if the defendant shares responsibility with another, or if the defendant is responsible for the instrumentality even though someone else had physical control over it
· Unless the duty is delegable, the res ipsa loquitur inference is not defeated if the defendant had shifted physical control to an agent or contracted with another to carry out its responsibilities
ex: Airport was still considered in exclusive control of escalator within the airport even though it contracted with a maintenance 3rd party to repair and maintain the escalator because they had a non delegable duty
· Purpose of requirement is to eliminate the possibility that the accident was caused by a third party
c) It must not be due to any voluntary action on the part of the plaintiff
-If all three requirements are met, the jury may infer that the defendant was negligent even though there is no direct evidence to that effect
-Most courts say res ipsa raises a “permissive inference” of negligence, which the jury may accept or reject, even if the defendant fails to offer evidence. Thus res ipsa gets the case to the jury by avoiding a direct verdict. A few courts say res ipsa raises a “presumption” of negligence and plaintiff can get directed verdict on issue of reasonable care if defendant fails to come forward with evidence
