--Negligence—
Burden of Proof
: Π must prove (1) neg (Δ didn’t use appropriate standard of care) + (2)
control + (3) duty + (4) actual cause[in fact]+ (5) proximate cause [legal cause] by a
preponderance of the evidence
for unintentional torts + (6) injury [physical always OK,
emotional OK sometimes]
Parties: Personalizing the Standard of Care:
Issue:
Who is D?
What standard of care should be used?
What to include in Δ’s
circumstances?
Π’s Arguments:
Δ’s Arguments:
RULE
: actual
1. Modern Rule:
under 4 presumed incapable
of being reas
2. Maj: standard of care is based on what is
expected of children of like age, intelligence,
and experience.
Special skills of
child
are considered b/c
closes an obvious loophole if kid is clearly
capable of achieving the adult standard.
4. Maj + R2:If child does “adult activities,”
then adult standard
Δ in better position to pay since cars/boats
are insured
1. CL: Under 7 presumed incapable of neg
2. CL: 7-14 years old =
rebuttable
presumption that child is incapable of neg
3. Min: has arbitrary age limits
4. Min: considers age, intelligence, and
experience even when child is engaged in
adult activities.
1. Maj: reasonable adult standard for
mentally retarded
2. Maj: special skills are considered as part of
D’s circ
1.
Special skills
: It is unfair that lack of skill
is not considered for beginners, but enhanced
skill is for experts
2. Creates disincentive to get skilled since
more liability
3. Unfair to hold retarded Δ’s contributory neg
Retardation = contributory neg
Unfair b/c they can’t control it
RULE: Physically disabled
only required to
do what a reasonable person with Δ’s
disability would do.
Physical disabilities are incorporated into
circ b/c can be determined w/ more certainty
than mental disabilities.
1. Unfair to those with mental disabilities
ISSUE
DEFENDANT
PLAINTIFF
Standard of Care:
Generally
Rule:
Conduct falling below
the standard of care that a
reasonably prudent person
would demonstrate under
similar conditions.
1. If not neg, then defense if
Δ was unaware of facts that
made his behavior
dangerous.
2. Acts wholly beyond control
3. Standard = ordinary, NOT
extraordinary care
General Knowledge
/ facts
of
common experience
is
presumed b/c every person
has a duty to learn such facts
Standards of care for
COMMON CARIERS
Modern Rule
: Reasonable
care under circumstances
Reasonable
care b/c
1. a higher standard is no
longer necessary since public
transportation is less
Utmost
Care b/c:
1. less dangerous, but still
dangerous
2. carrier makes implied
1
includes common carriers
Old Rule
: Utmost Care; Old
common carrier rule holding
common carriers to a higher
standard
dangerous than it was in the
19
th
century
2. Reasonable Care standard
is flexible enough to apply to
all circumstances and
creates less confusion as to
what standard applies
3. consensual relationship is
evidence of assumption of
risk
4. higher standard increases
costs & there is an interest in
making carriers available to
the public.
