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Negligence Liability: Understanding the Elements, Reasonable Person Standard, and More - P, Study notes of Business and Labour Law

The concept of negligence liability, discussing its elements, the reasonable person standard, joint and several liability, proximate cause, foreseeability, assumption of risk, and more. It also touches upon related topics such as strict liability and good samaritan statutes.

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Pre 2010

Uploaded on 12/15/2009

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Chapter 8 - Negligence Liability
1. What is negligence?
- Negligence is the omission to do something which a reasonable person, guided by those
ordinary considerations which ordinarily regulate human affairs, would do, or the doing of
something which a reasonable and prudent person would not do.
- A person acts negligently if the person does not exercise reasonable care under all the
circumstances
2. What are the elements of negligence? (Answer – duty of care; breach of duty; factual cause, harm;
scope of liability). What types of damages area available in tort cases?
-Duty of care: a legal duty required the defendants to conform to the standard of conduct
established for the protection of others
-Breach of duty: the defendant failed to exercise reasonable care
-Factual cause: the defendant’s failure to exercise reasonable care in fact caused the harm the
plaintiff sustained
-Harm: the harm sustained is of a type protected against negligent conduct
-Scope of liability: the harm sustained is within the “scope of liability,” which historically has
been referred to as “proximate cause,” Third Restatement, Section 6, comments
- Three areas of tort: intentional harm, negligence, or strict liability
- Duties of Possessors of Land applies to all three areas, breach of obligation to keep reasonable
care of their land so they will not cause unreasonable risks of harm to others
3. What is the “reasonable person standard?”
- Duty of care required to avoid being negligent: one who is careful, diligent, and prudent
- Fictitious individual who is always careful and prudent and never negligent
4. What is meant by the term “joint and several liability”? Either or both parties can be sued and held
liable in full. See also page 636.
- Joint and several liability: liability where creditors may sue partners jointly as a group or
separately as individuals
- All partners may be sued jointly in one action or that separate actions, leading to separated
judgments, may be maintained against each of them
5. What is proximate cause?
- When the act or omission played a substantial part in bringing about or actually causing the
injury or damage where the injury or damage was either a direct result of a reasonably probable
consequence of the act or omission
- Tort law does not impose liability on a defendant for all harm factually caused by the
defendant’s negligent conduct
6. What is foresee ability?
- Determining the liability of a negligent defendant for unforeseeable consequences has proved
to be troublesome and controversial so adopted following positions:
oIf the actor’s conduct is a substantial factor in bringing about harm to another, the fact
that the actor neither foresaw nor should have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable
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Chapter 8 - Negligence Liability

  1. What is negligence?
    • Negligence is the omission to do something which a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent person would not do.
    • A person acts negligently if the person does not exercise reasonable care under all the circumstances
  2. What are the elements of negligence? (Answer – duty of care; breach of duty; factual cause, harm; scope of liability). What types of damages area available in tort cases?
    • Duty of care: a legal duty required the defendants to conform to the standard of conduct established for the protection of others
    • Breach of duty: the defendant failed to exercise reasonable care
    • Factual cause: the defendant’s failure to exercise reasonable care in fact caused the harm the plaintiff sustained
    • Harm: the harm sustained is of a type protected against negligent conduct
    • Scope of liability: the harm sustained is within the “scope of liability,” which historically has been referred to as “proximate cause,” Third Restatement, Section 6, comments
    • Three areas of tort: intentional harm, negligence, or strict liability
    • Duties of Possessors of Land applies to all three areas, breach of obligation to keep reasonable care of their land so they will not cause unreasonable risks of harm to others
  3. What is the “reasonable person standard?”
    • Duty of care required to avoid being negligent: one who is careful, diligent, and prudent
    • Fictitious individual who is always careful and prudent and never negligent
  4. What is meant by the term “ joint and several liability ”? Either or both parties can be sued and held liable in full. See also page 636.
    • Joint and several liability: liability where creditors may sue partners jointly as a group or separately as individuals
    • All partners may be sued jointly in one action or that separate actions, leading to separated judgments, may be maintained against each of them
  5. What is proximate cause?
    • When the act or omission played a substantial part in bringing about or actually causing the injury or damage where the injury or damage was either a direct result of a reasonably probable consequence of the act or omission
    • Tort law does not impose liability on a defendant for all harm factually caused by the defendant’s negligent conduct
  6. What is foresee ability?
    • Determining the liability of a negligent defendant for unforeseeable consequences has proved to be troublesome and controversial so adopted following positions: o If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable

o The actor’s conduct may be held not to be a legal cause of harm to another where, after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm

  • “The foresee ability test for proximate cause is essentially consistent with the standard set forth in the Section. Properly understood, both the risk standard and a foresee ability test exclude liability for harms that were sufficiently unforeseeable at the time of the actor’s tortuous conduct that they were not among the risks – potential harms – that made the actor negligent. Negligence limits the requirement of reasonable care to those risks that are foreseeable.”
  1. What is assumption of risk? Superseding causes?
  • A plaintiff who has voluntarily and knowingly assumed the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover from such harm o Express assumption of risk: the plaintiff expressly agrees to assume the risk of harm from the defendant’s conduct, usually, but not always is by contract o Implied assumption of risk: the plaintiff voluntarily proceeds to encounter a known danger
  • Superseding causes: an intervening cause is an event or act that occurs after the defendant’s negligent conduct, and, together with the defendant’s negligence, causes the plaintiff harm
  • If the intervening cause is deemed a superseding cause, then it relieves the defendant of liability for harm to the plaintiff caused in fact by both the defendant’s negligence and the intervening event or act
  1. What is the difference between comparative and contributory negligence (pg. 152)? Which is more commonly applied today?
  • The Third Restatement’s definition of negligence as the failure of a person to exercise reasonable care under all the circumstances applies to the contributory negligence of the plaintiff
  • Most states have rejected the harshness of the all-or-nothing rule of the contributory negligence and substituted it with the comparative negligence doctrine
  • Pure comparative negligence: the law apportions damages between the parties in proportion to the degree of fault or negligence found against them
  1. What is strict liability? Note page 154 regarding animals and how this may apply to the San Francisco tiger case.
  • Strict liability: a concept applied by the courts in product liability cases in which a seller is liable for any and all defective or hazardous products which unduly threaten a consumer’s personal safety. This concept applies to all members involved in the manufacture and sale of any facet of the product.
  • Applying to San Francisco tiger case: As a general rule, those who possess animals for their own purposes do so at their peril and must protect against the harm those animals may cause to people and property
  1. What are Good Samaritan statutes?
  • Laws or acts protecting from liability those who choose to aid others who are injured or ill. They are intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death.

o Perzigian later sued Carroll O'Connor for slander for calling him a "sleazeball" and saying "he was a partner in murder, not an accessory, a partner in murder" in an interview o I think this is stupid

  1. William Jefferson Clinton and Dan Burton (Is it slander to speak badly of the President?) o I DON’T KNOW
  2. Oprah Winfrey (Cattle men sue her over her show on slander charges – successful or not) o Case dismissed, cannot be filed again anywhere, even the Supreme Court o It was stupid

Cases (both of these can be elaborated, can’t find articles)

  1. Shannon Audley v. Bill Melton AND Bill Melton Productions. Woman injured by tiger during modeling shoot. Was language in the contract sufficient to protect Melton from liability? o Signed contract knowing she was working with hazard animals
  2. San Francisco Zoo tiger attacks o Patrons at zoo may have been provoking tigers o 3 men attacked

Group Projects

Factory Farming

  1. What legal issues are raised by factory farming? o Disease o Unethical-over-crowding living condition, inhumane treatment, slaughter without treatment
  2. What is the Federal Human Slaughter Act? o Designed to protect food animals during the moment of their slaughter
  3. What is MRSA? o Bacteria found in farm animals being spread to humans o Can cause different illnesses in humans
  4. What are possible or speculated injuries to persons from feeding antibiotics to animals? o Animals raised on antibiotics may develop antibiotic resistant strains of pathogenic bacteria ("superbugs") o Use of animal vaccines can create new viruses that kill people and cause flu pandemic threats  Alcohol Liability:
  5. What are dram shop acts? o Establish the liability of establishments arising out of the sale of alcohol to visibly intoxicated persons or minors who subsequently cause death or injury to third- parties—those not having a relationship to the bar, as a result of alcohol-related car crashes and other accidents

o Protect the health, safety, and welfare of the people from the dangers of traffic in liquor o Vary from state to state

  1. What is social host liability? o Host is responsible for guests during and after parties
  2. What is/are differences between dram shop liability and social host liability? o IDK? Bartender and host are both at fault