Negligence - 2.txt

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Negligence - 2.txt
2010-11-26 16:48:51

Negligence - 2
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  1. What are the 3 words associated with negligence?
    • 1. Duty
    • 2. Reasonable
    • 3. Foreseable
  2. Definition of Negligence
    Breach of a duty to exercise ordinary care that results in the injury of another

    a) is an unintentional tort in which there is fault liability
  3. When is a tort unintentional?
    When the injury was unintentional

    a) ex. you slip an fall in a restaurant due to a wet floor
  4. When is an individual negligent?
    When an individual unintentionally causes harm to another in a situation in which you should have known your action could cause harm
  5. What three things does a P need to prove in a negligence case?
    • 1. Duty of care
    • 2. Standard of care
    • 3. Cause in fact
  6. What does duty of care mean?
    Obligation to avoid careless actions that could cause harm to one or more persons.

    Did the D have a duty of care to the P?
  7. What is the breach of standard care mean?
    Standard care is what care a REASONABLE person would have provided in a similar situation.

    a) knowledge you are charged with is for what you know and what a reasonable person in your situation should have known
  8. What is cause in fact?
    It is when the P must prove that the actions of the D were the cause of P's injuries

    • a) apply the "but for" test
    • i.e. the injuries would not have occured "but for" the D's actions

    You need proximate (substantial) cause (meaning close enough in the chain of events to be legally liable).

    a) most common test for proximate cause is FORESEEABILITY
  9. How to determine reasonableness?
    • 1. Gravity of harm
    • a) did someone die?
    • 2. Risk of occurance
    • a) less likely the harm, the more reasonable D's actions

    3. Ease of avoidance
  10. What's the utility of conduct in regards to reasonableness?
    If you are doing bad things, you are more likely going to be found unreasonable
  11. What is holding?
    A court's determination of the law based on the issue presented in a particular case.

    a) under this law, with these facts, with this result
  12. Fault Liability vs. Strict liability
    • Strict liability.
    • Suppose I make a mess on my property and present you with the bill for cleaning it up. Absent some prior agreement, this would seem rather odd. It is my mess, after all, not yours. Now suppose that instead of making a mess on my property and presenting you with the bill, I simply move the mess to your property and walk away, claiming that the mess is your problem. If it was inappropriate of me to present you with the bill for the mess I made on my property, it hardly seems that I have improved matters by placing my mess on your property. I have a duty to clean up my messes and the existence of this duty does not appear to depend on how hard I have tried not to make a mess in the first place. This is the underlying intuition expressed by the rule of strict liability.

    • Fault liability.
    • Unless we stay home all day, we are each bound to make the occasional mess in another's life. This being so, it would be unreasonable of me to demand that you never make any kind of mess in my life. What I can reasonably demand is that you take my interests into account and moderate your behavior accordingly. In particular, I can reasonably demand that you take precautions not to injure me — that you avoid being careless with respect to my interests and, all the more so, that you not injure me intentionally. This is the underlying intuition expressed by the rule of fault liability.
  13. Some more stuff that helps clear up strict tort liability vs. fault liability
    Some find it helpful to distinguish between strict liability and fault liability in terms of the content of the underlying legal duty. In the case of blasting — an activity traditionally governed by strict liability — the blaster has a duty not-to-injure-by-blasting. In the case of driving — an activity traditionally governed by fault liability — the driver has a duty not-to-injure-by-driving-faultily. No matter how much care he takes, the blaster fails to discharge his duty whenever he injures someone. In contrast, the driver fails to discharge his duty only when he injures someone negligently, recklessly, or intentionally.
  14. What is product liability?
    Negligence on the part of manufacturers
  15. What is strict liability?
    Liability that applies in situations where the activity is so dangerous that the D is automatically liable in instances where there is injury

    You have to be a seller to have strict tort liability

    Product must be:

    • 1. Unavoidably safe
    • a) meaning that no matter what precautions are taken the product is still dangerous

    2. Unreasonably dangerous
  16. Defenses against negligence
    • 1. Did not owe duty of care
    • 2. That you met the standard of care
    • 3. Your actions did not cause injury
    • 4. Contributory negligence
    • 5. Assumption of risk
  17. What is contributory negligence?
    When the P contributed to the cause of the injury
  18. What is assumption of risk?
    P knowingly and willingly assumed the potential risk associated with that particular activity
  19. What does statute of limitations mean?
    Specifies the time period in which a person must sue for damages.

    a) every province has one of these
  20. It if its a joint enterprise each D wrongdoer is liable for all damages
    • Scenario:
    • Bob and Jim want to beat up Sherry. In the struggle, Sherry breaks her arm. Both Bob and Jim are responsible even though Jim only held Sherry down
  21. If there are independent wrongdoers, but the injury is indivisible, than everyone is liable for all damages

    B drives too fast on icy street; A runs stop sign. A & B collide and injure C.

    Another Scenario:

    Farmer A and Farmer B both set fires. The fires meet and burn down C's house. Both are liable
  22. When there are independent wrongdoers (tortfeasors) and the injury is divisiable (in theory), than each wrongdoer is only liable for what he/she caused
    In this scenario, the burden of proof rests on the D to prove what portion they are liable for