Torts.Martin.2004.doc - -Negligence\u2014 Burden of Proof \u03a0 must prove(1 neg(\u0394 didn\u2019t use appropriate standard of care(2 control(3 duty(4 actual

Torts.Martin.2004.doc - -Negligenceu2014 Burden of Proof...

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--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
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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.
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