The flashcards below were created by user
on FreezingBlue Flashcards.
Negligence is a breach of the duty of due care that is the actual and proximate cause of P's injury.
- 1. A defendant owes a duty of care to all foreseeable victims.
- Generally, people nearby are foreseeable (zone of danger)
- An affirmative act can create a foreseeable and unreasonable risk of injury to another (creating a duty).
- 2. Establish the standard of care required
Standard of care: invitee
- Business invitee standard of care requires D to:
- 1) warn of non-obvious, dangerous conditions known to the landowner
- 2) make reasonable inspections to discover dangerous conditions, and then make them safe
Breach of duty
- A breach of the duty of due care occurs when the defendant falls below the applicable standard of care.
- 1. A defendant must act with the degree of care of a reasonably prudent person acting under similar circumstances
- -no allowances for personal (mental) shortcomings
- -only allowances for physical characteristics
- -Def will be held to superior skill or knowledge
- 2. Negligence per se
- 3. Res Ipsa
Negligence per se
- P must prove:
- 1. P is a member of the class of persons that the statute is designed to protect
- 2. accident is in the class of risks that the statute is designed to protect against
- For most courts, violation of a statute is "negligence per se," which is a conclusive presumption of duty and breach of duty.
- Other courts, it's a rebuttable presumption.
But for causation
- Plaintiff must prove that the breach was an actual cause of the injury.
- Put another way, P must prove that, had the breach not occurred, the accident would not have occurred.
- Plaintiff must prove that the breach was also a proximate cause of the injury.
- Plaintiff must prove that the consequences of defendant's actions were foreseeable.
Intervening torts or crimes, of proximate cause?
- Independent intervening forces may be foreseeable where D's negligence increased the risk that these forces would cause harm to P.
- If D's negligence caused a foreseeable risk that a 3rd person would commit a crime or intentional tort, D's liability will not be cut off by the intervening crime or tort.
- However, if the crime or intentional tort was not foreseeable, it will be deemed a superceding force that cuts off D's liability.
- 1. Prove that P was negligent, did not protect or remove herself from the danger.
- 2. Assumption of the risk (P must have known of the risk and voluntarily assumed it)
Respondeat superior holds the employer liable for acts of its employees within the scope of employment.