Textbook Notes (368,566)
United States (206,084)
LPP 255 (13)
Unkown (13)
Chapter 7

CHAPTER 7.docx

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Department
Law & Public Policy
Course
LPP 255
Professor
Unkown
Semester
Fall

Description
CHAPTER 7 • Negligence= someone suffers injury because of another’s failure to live up to a required duty of care o Tortfeaser neither wishes to bring about the consequences of the act nor believes that they will occur o No risk, no negligence o Must be foreseeable= a reasonable person engaging in the same activity would anticipate the risk and guard against it  What is reasonable conduct • Courts consider the nature of the possible harm o Plaintiff must prove:  DUTY= the defendant owed a duty of care to the plaintiff  BREACH= the defendant breached that duty  CAUSATION= the defendant’s breach caused the plaintiff injury  DAMAGES= the plaintiff suffered a legally recognizable injury Duty of Care: if we are to live in society with other people, some actions can be tolerated and some cannot, some actions are reasonable and some are not • People are free to act as they please so long as their actions do not infringe on the interests of others • May be an act or an omission • Reasonable person standard= how would a reasonable person have acted under the same circumstances o Society’s judgment of how you should act o Careful, conscientious, even tempered, honest • Degree of care varies o Defendant’s occupation/profession o His or her relationship to the plaintiff Duty of Landowners: reasonable care to protect individuals coming onto their property from harm • Protect trespassers against certain risks • Ensure that tenants and their guests are not harmed • Retailers and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect these business invitees o Duty to discover and remove any hidden damages Duty of Professionals: If an individual has knowledge or skill superior to that of an ordinary person, the individual’s conduct must be consistent with that status • Malpractice= professional negligence No Duty to Rescue: you will not be considered negligent for failing to come to the aid of a stranger in peril • Ethical duty Causation • Court must address two questions: o 1. Is there causation in fact?  Did the injury occurred because of the defendants act or would it have happened anyway • If the injury would have happened anyway, there is causation in fact o 2. Was the act proximate, or legal, cause of injury?  Proximate cause= exists when the connection between an act and an injury is strong enough to justify imposing liability DEFENSES TO NEGLIGENCE: • “Failed to prove the existence of one or more of the required elements for negligence” o Affirmative defense  Defendant can use to avoid liability even if the facts are as the plaintiff states o Assumption of risk  Plaintiff who voluntarily enters a risky situation, knows the risks involved will not be able to recover  Requirements for defense • Knowledge of the risk • Voluntary assumption of the risk  Plaintiff injured during recreational activities, skydiving, skiing  The risk can be assumed by express agreement or can be implied by the plaintiffs knowledge of the risk and subsequent conduct o Superseding cause  Unforeseeable intervening event may break the casual connection between a wrongful act and an injury to another • If so, the intervening event acts as a superseding cause o Relieves a defendant for liability for injuries caused by the intervening event o David liable for breaking her hip but not liable after that because the plane crashing was not foreseeable o Contributory and Comparative negligence  Contributory= plaintiff who was also negligent could not recover anything from the defendant
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