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
