--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 evidencefor 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 reas2. Maj: standard of care is based on what is expected of children of like age, intelligence, and experience.Special skills of childare 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 standardΔ in better position to pay since cars/boats are insured1. CL: Under 7 presumed incapable of neg2. CL: 7-14 years old = rebuttablepresumption that child is incapable of neg3. Min: has arbitrary age limits4. Min: considers age, intelligence, and experience even when child is engaged in adult activities.1. Maj: reasonable adult standard for mentally retarded2. Maj: special skills are considered as part of D’s circ1. Special skills: It is unfair that lack of skill is not considered for beginners, but enhancedskill is for experts2. Creates disincentive to get skilled since more liability3. Unfair to hold retarded Δ’s contributory negRetardation = contributory negUnfair b/c they can’t control itRULE: Physically disabledonly 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 disabilitiesISSUEDEFENDANTPLAINTIFFStandard of Care: GenerallyRule: 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 control3. Standard = ordinary, NOT extraordinary careGeneral Knowledge/ facts of common experienceis presumed b/c every person has a duty to learn such factsStandards of care for COMMON CARIERSModern Rule: Reasonable care under circumstances Reasonablecare b/c1. a higher standard is no longer necessary since publictransportation is less UtmostCare b/c:1. less dangerous, but still dangerous 2. carrier makes implied 1
includes common carriersOld Rule: Utmost Care; Oldcommon carrier rule holding common carriers to a higher standarddangerous than it was in the 19thcentury2. Reasonable Care standard is flexible enough to apply to all circumstances and creates less confusion as to what standard applies3. consensual relationship is evidence of assumption of risk4. higher standard increases costs & there is an interest inmaking carriers available to the public.