NEGLIGENCE
The elements are injury, duty, breach, and cause/proximate cause. The evidence has to be proven by the preponderance of the evidence.
I. Elements of a Prima Facie Case
A. Injury
Includes: Physical harms (bodily injuries and property damage), loss of wealth (pure economic loss and consequential economic loss), and Emotional Distress
B. Duty has to do with predictability not certainty
· Duty of care limits the number of potential Πs in a negligence case.
· It is taking reasonable care to avoid injury to someone else.
· Reasonable care changes according the circumstances and is narrowed down to standard of care, depending on the context.
· The Duty question is for the court to decide; the standard is for the jury.
· To determine duty, we ask: “What could be reasonably expected of him/her”. We look at mental attributes, knowledge and skill, physical attributes, age etc.
1. Qualified Duties of Care include 1) premises liability 2) “pure” economic loss 3) affirmative duty or duty to rescue cases 4) exemption cases
a. Premises Liability refers to dangerous conditions on the land, not dangerous activities
i. Trespassers è no liability
Includes anyone who intentionally enters a property without the possessor’s actual or implied permission. There is no duty of care owed to adult trespassers, but there is a duty to children who cannot appreciate a danger presented on the property.
ii. Licensees è less liability
A licensee is a person who has actual or implied permission to be on the property, usually to carry out a specific task. Possessors owe a duty only under special conditions. Here, it would be to warn against unknown dangers that are not readily observable.
iii. Invitees è more liability
An invitee is a person who enters property with the consent of the possessor for the material benefit of the possessor. Invitees are owed a standard duty of care
iv. Non-Entrants
Possessors are not liable to take care to protect agaisnt harms caused by natural conditions, however they have to make sure that conditions on their property will not injure those on neighboring properties ex. Trees.
b. Economic Loss
Generally, a plaintiff may not recover for pure economic loss, only for consequential economic loss.
i. Pure Economic Loss Exception: Professionals
Omissions or statements by professionals/specialists may lead to recovery. They are held to a higher standard of care because of the training involved; it is a skill most people do not have. Courts allow their peers to define the standard of care
articular harm may bear the issue of what sort of precautions, if any, a reasonable person would take.
2. Unreasonable versus Reckless
Recklessness may be proven is the defendant:
· intentionally or unreasonably disregarded a risk that presented a high probability that substantial harm would result to another;
· the risk of death or bodily injury was known or reasonably apparent; and
· the harm was a probable consequence of the decision to take the risk or the failure to recognize it.
3. Tender Years Doctrine and Parental Liability
A child less than 7 is incapable of negligence. In cases of older children, the jury will be asked to gauge the behaviour in comparison to that of other children of the same age, experience, and intelligence. Exceptions are made when minors engage in adult activities. Parents are not usually held vicariously liable for their children’s acts.
a. Negligent Supervision – Parental Exception
A person injured by a child must establish that it was due to the parent’s carelessness
