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Elements of negligence:
- 1. duty
- 2. standard of care
- 3. breach of duty
- 4. causation (cause in fact, proximate cause)
- 5. damages
- - Think of any defenses.
What is the general duty rule?
A defendant engaged in affirmative risk creating conduct causing personal injury or property damage, a duty is owed to a foreseeable plaintiff.
Is a duty owed to unforeseeable plaintiffs?
Rescuers _________ owed an independent duty.
b. are not
Explanation: Even if unforeseeable, we want rescuers to be able to recover from a negligent party because we want to encourage people to be rescuers.
True or False: Absent an exception, you do not have a duty to act (rescue or aid).
A defendant does have an affirmative duty to act, where:
- 1. the defendant's tortious conduct created the need for rescue
- 2. the defendant created reliance that he or she will come to Plaintiff's aid
- 3. the defendant has a special relationship witht the plaintiff (i.e. parent/child, spouses, innkeeper/guest)
If a person chooses to come to the aid of another, he or she must act ______.
Example: Delilah is on a deserted beach and sees a car fly over a bridge into the water. Delilah has no obligation to rescue, but if she undertakes to act she cannot then swim away.
Good Samaritan statutes: Those who rescue others are not liable for their ______, but will be liable if they act ______, ______, or _________.
Not liable if negligent, liable if willful, reckless, or grossly negligent.
Generally, there is no duty to control the conduct of a third person as to prevent him from causing physical harm to another, unless:
one takes charge of another knowing of their dangerous propensity. Then there might be a duty to warn others and control the person.
Example: A prison has a dangerous criminal locked away and he escapes. The prison has a duty to warn the people in the neighborhood. Also, the Tarasoff case.