NEGLIGENCE – DUTY OF REASONABLE CARE
Negligence – Conduct less careful than an applicable standard of care requires to protect people from unreasonable risks of harm. In most cases the applicable standard of care requires a person to act as carefully as a reasonable prudent person would act.
· Negligence is not an intentional tort, so proof of the defendant’s intent is not required.
4 Elements for Negligence
· The plaintiff must show that the defendant owed the plaintiff a duty to act or refrain from acting in a certain way.
In determining whether a tort duty exists there are many variables: (Eisel)
1. The foreseeability of harm to the plaintiff,
2. the degree of the certainty that the plaintiff suffered the injury (the injury is obvious and easy to determine)
3. the closeness of the connection between the defendant’s conduct,
4. the policy of preventing future harm,
5. the extent of the burden to the defendant and
6. consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability,
7. cost and prevalence of insurance for the risk involved.
1. Reasonable Pru
jective: the conduct of a hypothetical typically reasonable person.
1. POLICY – Easy to apply – this is easier to apply then a subjective test.
b. Knowledge – The RPP is assumed to have knowledge typical of people in his or her community. (Parrot v. Wells Fargo – Nitroglycerin case)
2. Some courts and the restatement require a person additionally to use an superior knowledge or skills.
c. Low intelligence – a person with low intelligence is held to the RPP. (Vaughn v. Menlove – Hayrick)
3. POLICY –
§ Degrees of mental powers are hard to identify for the victim.
§ The judge would have a hard time knowing when to apply a separate standard.
§ Jurors may be unfamiliar with different degrees of mental weakness.
§ Using the RPP may encourage those who can influence the conduct of the mentally weak person to hav e that person avoid activities that risk injuries to others.
d. Learned Hand Test – States that conduct will be negligent if the burden on the defendant for avoidance is less than the probability of the harm multiplied by the magnitude of the loss. B