Tort__Negligence-Reasonable_Person_Test.txt

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marioavarela
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50987
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Tort__Negligence-Reasonable_Person_Test.txt
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2010-11-21 19:59:45
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Negligence Reasonable Person Test
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Negligence Reasonable Person Test
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  1. Define negligence.

    What are the 4 elements?
    • failure to exercise reasonable care under the circumstances resulting in
    • injury to person or property.

    • 1. Duty to use reasonable care
    • 2. Breach of duty
    • 3. Causation
    • Cause in fact
    • Proximate Cause
    • 4. Actual Damages to P's person or property
  2. What's the BIG difference from intentional torts and negligence?
    actor does not have INTENT to commit tort
  3. Define Duty:
    • The legal responsiblity to exercise due care of a reasonable prudent person under the circumstances to protect another from a foreseeable injury. Policy—Used because it would be
    • difficult to determine the intelligence and capacity of each person.

    • I) Ordinary care under the
    • circumstances, not extraordinary care or constant apprehension of danger

    • II) The more dangerous an item, the
    • less likely it is to be reasonable

    III)Analysis by Palsgraf


    • Certain factors such as the
    • status of the parties (ie: owners or occupiers of land) or statutes may limit
    • or extend this general duty




  4. 2 jurisdictions to determine who is owed a duty of care:
    • Area of Apprehension/Orbit of Danger (Cardozo)-Majority Duty Analysis
    • Duty of care owed only to people who
    • are reasonably foreseen injured; foreseeable plaintiffs

    • Based on forseeability of the circumstances
    • (1) The orbit of danger determined
    • by what a reasonable person would foresee

    • (a) Inside the orbit-D owes P a
    • duty of care

    • (b) Outside the orbit-No duty of
    • care is owed, even if person is injured

    • II) Global Duty (Andrew) Causation Analysis
    • Duty of care owed to ALL and ANY
    • persons who is proximately harmed by it, whether or not the harm is foreseeable
    • (1) D owes a duty of care to anyone
    • who could possibly be affected
  5. Area of Apprehension Jurisdiction:
    Area of Apprehension/Orbit of Danger (Cardozo)-Majority Duty Analysis

    • Duty of care owed only to people who
    • are reasonably foreseen injured; foreseeable plaintiffs

    • (1) The orbit of danger determined
    • by what a reasonable person would foresee

    • (a) Inside the orbit-D owes P a
    • duty of care

    • (b) Outside the orbit-No duty of
    • care is owed, even if person is injured

    • (2) Rationale-if we are to protect
    • people from certain dangers, then we must be able to foresee those dangers

    • (a) If D can’t see a risk of their
    • action, they cannot be expected to protect someone against that risk

    • (3) Element of duty at issue: even
    • if you are acting unreasonably, there is no duty to those outside the range of
    • apprehension b/c there is no obligation to you
  6. Global Duty Jurisdiction:
    • II) Global Duty(Andrew) Causation Analysis
    • Duty of care owed to ALL and ANY
    • persons who is proximately harmed by it, whether or not the harm is foreseeable
    • (1) D owes a duty of care to anyonewho could possibly be affected

    (a) Standard of care allows anyoneto potentially be able to state a claim, but the P would still have to provethe other 3 elements

    (b) Jury determines the element ofcausation “asks instead if there was a natural and continuous sequence betweenthe cause and effect and not whether the act would reasonably be expected toinjure another”
  7. Basic Standard for Breach?
    The reasonable prudent person under the circumstances
  8. What is the standard for breach of common knowledge and community standards?

    Is ignorance a defense to this standard?
    • certain knowledge is imputed to the entire community and it is expected
    • to be known and adhered to in order to protect the public at large. Imposes the
    • reasonable person test
    • I) Ignorance is not a defense—the
    • law may impose an obligation on a person to find out what something means or to
    • discover a dangerous condition where it would be easy to discover it by a
    • reasonable inspection.
  9. What's the general rule for breach of a custom practice?
    A) Failing to follow custom is NOT conclusively a breach of duty/negligence; must first be proven to be a reasonable practice.

    • I) When proof of an accepted
    • practice is accompanied by evidence that the defendant conformed to it, this
    • may establish due care. Customary
    • practice coupled with showing that it was ignored and that this departure from
    • custom was a proximate cause of the accident, may serve to establish liability.


    II) Can be used by both the P and D

    • (1) P: used to show that D breached
    • their duty of care

    • (2) D: used as evidence to prove
    • the duty of care was not breached

    • III) Applies to a non-medical
    • circumstance
  10. What's the standard of care for people with insanity or mental illness?
    reasonable, prudent person under the circumstances standard

    • Objective standard is
    • applied; Mental illness is not a relevant consideration in deciding whether the
    • person behaved reasonably for negligence

    • (1) Exceptions in some
    • jurisdictions: Standard in Breuning—For
    • sudden, unforeseeable and temporary insanity or physical incapacitation…the
    • insanity or incapacitation caused the negligence and person is not
    • liable—examples—epileptic seizures, stroke, fainting, sudden heart attack
  11. Standard of care for emergencies?
    What's the emergency doctrine?

    Define emergency...

    When does the emergency doctrine not apply?
    • reasonable prudent person in an emergency
    • I) Emergency—event that is sudden, unforeseen and unexpected Ex—a
    • taxi cab driver that is held up.

    • II) If emergency is created by the
    • negligence of the actor, the emergency doctrine does not apply. Emergency cannot be the cause of the
    • defendant.
  12. Standard of care for those with a physical disability?

    What's the general rule for voluntary intoxication?

    What's the general rule for superior endowments/abilities?
    • reasonable prudent person with the same disability under the same
    • circumstances. The person may have to take precautions that an ordinary person would
    • not. Therefore, the conduct must
    • be reasonable given the actor’s disability

    • I) Exception— voluntary or
    • negligent intoxication is not a physical disability

    • Superior
    • endowments/ability- not allowed to engage by acting in order to be reasonable…
    • can’t limit their natural ability.
  13. What's the duty of care for children: 3 jurisdictions
    I) Majority/general rule—Reasonable Child Standard

    (1) Reasonable, prudent child of the same age, intelligence, and experience

    • II) Minority—NC
    • Rule—Rule of Sevens—

    • (1) 0-6 conclusively incapable of
    • negligence

    • (2) 7-14 presumed incapable of
    • negligence, but presumption is rebuttable.

    • (3) 15 to 17 and older presumed
    • capable of negligence, but presumption can be rebut

    • (4) 18- reasonable person standard;
    • adult and deemed capable of negligence

    III) Inherently Dangerous Activity

    (1) When the child engages in an adult activity (which is inherently dangerous), the child will be held to an adult standard of care (reasonable prudent person under the circumstances).
  14. What is the MAJORITY/GENERAL RULE for children and duty of care?
    I) Majority/general rule—Reasonable Child Standard

    • (1) Reasonable, prudent child of the same age, intelligence, and experience except when the child engages in
    • an adult activity (which is inherently dangerous), the child will be held to an
    • adult standard of care (reasonable prudent person
    • under the circumstances).

    • (a) Child’s conduct should be
    • judged by the same standards whether P or D
  15. What is the minority rule for CHILDREN and due care?
    • II) Minority—NC
    • Rule—Rule of Sevens—

    • (1) 0-6 conclusively incapable of
    • negligence

    • (2) 7-14 presumed incapable of
    • negligence, but presumption is rebuttable.

    • (3) 15 to 17 and older presumed
    • capable of negligence, but presumption can be rebut

    • (4) 18- reasonable person standard;
    • adult and deemed capable of negligence
  16. What is the inherently dangerous activity rule for CHILDREN and due care?

    What jurisdictions apply?
    III) Inherently Dangerous Activity

    (1) When the child engages in an adult activity (which is inherently dangerous), the child will be held to an adult standard of care (reasonable prudent person under the circumstances).

    • (2) Every jurisdiction defaults to
    • this standard…

    • (a) There is a dichotomy;
    • jurisdiction differs. The activities reserved for adults depend on the region
    • of the country.
  17. What rule does NC apply for CHILDREN and due care?
    I) Minority—NC Rule—Rule of Sevens—

    • (1) 0-6 conclusively incapable of
    • negligence

    • (2) 7-14 presumed incapable of
    • negligence, but presumption is rebuttable.

    • (3) 15 to 17 and older presumed
    • capable of negligence, but presumption can be rebut

    • (4) 18- reasonable person standard;
    • adult and deemed capable of negligence

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