Negligence and Strict Liability - Lecture Notes | Bus 250, Study notes of Business and Labour Law

Download Negligence and Strict Liability - Lecture Notes | Bus 250 and more Study notes Business and Labour Law in PDF only on Docsity! Negligence and Strict Liability Negligence Some of the more common examples of torts based on negligence are most automobile accidents, premises liability, or “slip and fall” cases, and medical malpractice cases. In the Intentional Torts chapter you learned that the party who commits a tort is called a “tortfeasor”. Just like the intentional torts that were discussed the earlier chapter, a tort based on negligence has four (4) elements. They are: 1. Duty 2. Breach of Duty 3. Proximate Cause 4. Damages As with other causes of action, the plaintiff must prove each element by a preponderance of the evidence. Duty This means that the defendant must owe some legal duty to the plaintiff. If no duty is owed, it can’t be breached, and the other elements fail, too. From a practical standpoint, negligence usually occurs when a duty is breached. Breach of Duty of Care According to the book, negligence is defined as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. A simpler definition of negligence is the failure to use that degree of care that a reasonably, prudent person would use under the same or similar circumstances. Negligent conduct creates an unreasonable risk of harm. It is substantially certain that harm will flow from the conduct that comprises intentional torts. Negligence can consist of doing some act that a reasonably, prudent person would have done under the circumstances, or it can be the failure to do something that a reasonably, prudent person would have done. In other words, it can consist of an act of commission or an act of omission. This chapter introduces you to the reasonable person, or reasonable man standard, which is an objective, as opposed to subjective, standard. You might want to envision this reasonable man or person as someone really dull – they never takes chances, never do anything wrong, are always careful and never cause harm to anyone. In short, he or she isn’t much fun -- not someone you would want to party with or take along on a road trip. Another important part of this definition is what the reasonable man would do “under the circumstances.” A simple example involves someone driving down the highway in a blinding rainstorm going the speed limit. They hit standing water, have a wreck and injure someone in their car or another car. Just because this person was driving the speed limit, or obeying the law, doesn’t mean they aren’t negligent, and the reason they might be negligent is that the blinding rainstorm and the likelihood of water standing in the highway are part of the circumstances. The question to be answered is: “Would that fictitious reasonably, prudent person have been driving that fast in the rain?” The test for children who are negligent is what would a reasonably, prudent child of like age, intelligence, and experience have done under the circumstances. For those with a physical disability, their conduct must conform to that of a reasonable person under like disability. These limitations are part of the circumstances. However, a mentally deficient person is held to the general reasonable person standard. Persons who possess some superior skill or knowledge, or professionals, such as doctors, lawyers, architects, etc., must exercise the same care and skill normally possessed by members of their particular profession. These types of claims are known as malpractice claims, and proof of the professional’s negligence is usually made through the use of another person who practices in their particular field. We call these people expert witnesses. In an emergency, the reasonable person standard applies, but the emergency is one of the circumstances. Generally, a person is under no duty to help someone else in a perilous situation, but when they do, reasonable care must be used. A statute that is designed to protect the public may define duties owed or standards of conduct, such as rules of the road, DUI laws, and when these statutes are violated, the tortfeasor’s violation is negligence per se. In other