Study Notes

23 Pages
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Department
Business Administration
Course Code
BUS 393
Professor
Shafik Bhalloo

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Description
Chapter 5Negligence Professional liabilityInsuranceNEGLIGENCE Inadvertent careless conduct that causes injury to another The required fault is found in the failure of the livewrongdoer to up to the degree of skill or care required in the circumstances Important area of tort liability for professionals businesspplMain problem for the court to determine what standard of care was required ofthe defendantwhether there was a failure to meet that standardReasonable person test used by court in many areas of law to establish standards of socially acceptable behaviorEX wht would a reasonable prudent person in possession of all the facts of the case have done in this situationrepresents the standard of care expected from a prudent person who is being carefulimp To understand that the standard determined using the reasonable person test is not what would be expected of an average person A reasonable person is expected to be particularly careful demonstrating a level of behavior considerable better than average think about par in golf45 is avg 3 is reasonableexpected from a good player but it is isnt the best perfectVolenti non fit injuriacan only e used where there is an assumption of both the legal risk and the physical riskcomplete barto recovery of damagesTo avoid liability forthenegligencestandard of care is reasonableness as opposed to average or perfection conduct falling between averageperfect like par on golf4 Essential Elements must be established by the plaintiff to succeed in a negligence actionA A duty to exercise careB Breach of the standard of careC CausationThe act caused the injuryD Damages Victim suffered a lossOnce the plaintiff has established that the defendant owed a duty to be careful to the plaintiff that the defendants conduct fell below the standard of care required in the situation and that the conduct complained of caused some injury or loss to the plaintiff negligence is established IngredientsTest UsedAA duty is of care is owed to the plaintiff1 Foreseeable plaintiff test reasonable foreseeability test2 Policy considerations may negate existence of a dutyBBreach of that duty breach of the standard ofReasonable person test careC Causation1 Physical but for test2 Legal remoteness testD DamageA type recognized by courts as compensableAReasonable Foresee ability Test the court must determine whether the defendant owed a duty of care to the plaintiff If it were reasonably foreseeable that the conduct complained of would cause harm to the plaintiff a duty to be careful exists Wea reasonably anticipate might be harmed by our conducta oweduty then to anyone whom we can test of whether a duty of care is owed based on what a person should have anticipated would be the consequences of his or her action also called the foreseeable plaintiff test we owe a duty to anyone who we can reasonably anticipate might be harmed by our conductDonaghue v Stevensoncase Is there any reason to reduce or eliminate this duty Anns case test RFT has been refined in the English Anns Case Created a 2stage test determining the existence of a duty of careRFT developed in this caseDonoghue V Stevenson reasonable foreseeability test This test has 2 requirementsst 1 that injury to the plaintiff was reasonably foreseeable but also that there is a relationship bw them such that the plaintiff was of a class of person s who are so closely and directly affected by my act that th defendant should have had them in mind when committing the act in questionnd 2 providing for exceptions or modifications to the principle test was there any reason that the duty should not be imposed Should scope be reduced These questions allow court to consider social policy rather than strict legal rules when looking at special situations and relationships In most negligence cases the existence of a duty is obvious Misfeasance or wrongful conductan act that causes harm to another unacceptable action court will provide remedyNonfeasance a failure to prevent an injurycourts reluctant to provide remedyunless it can be established that a particular relationship existed EX swimmer LifeguardEX ppl who see a child drowning have no duty to rescue unless they happen to be lifeguardsEX doctors have no legal duty to help accident victim of car crash but if they start to help then they must continue to help If a person attempts to help there is a duty to exercise reasonable care Or if there is a special relationship a duty to exercise reasonable care can arise B Breach of standard of caretakes into consideration the circumstances risk expense expertise carelessness main problem for court is to determine how careful the defendant should have been Did the defendant breach the standard of conduct demanded in this situation What would a reasonable person have done in the circumstances reasonable person test is used to determine wht level of care should have been exercised Actions that fall below socially acceptable standards create liability for damagesas he is negligent and liable for any injury or loss resulting EX he is negligentliable for injury or loss resultingwhat is reasonable conduct will vary with the circumstances the court will take into account the risk of lossEX teacher must exercise more care in supervising student engaged in risky gymnastics exercise especially if student r unfamiliar wequipwhat constitutes a reasonable behavior will also vary with the expertise of the person being sued A doctor is expected to function at least as far as medical matters are concerned at a higher level than a nonmedical person and so is held to a higher standard
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