Jen's Torts Outline

Jen's Torts Outline - TORTS NEGLIGENCE a. Negligence The...

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TORTS NEGLIGENCE a. Negligence – The Fault Concept i. Negligence is about conduct that is careless, irresponsible, and blameworthy; conduct that is socially unacceptable. Duty Breach Causation Harm ii. How Do We Quantify Blame? (PH x MH > CP) Probability of the harm Magnitude of the harm Cost of preventing the harm When the probability times the magnitude exceeds the cost of prevention, then the harm could have been prevented b. Breach of Duty i. Standard of Negligence THE STANDARD OF CARE o Level of conduct demanded of a person so as to avoid liability for negligence o Failure to meet this standard is characterized as a breach of duty THE AVERAGE REASONABLE PERSON requires a person to use such “caution as a man of ordinary prudence would observe” (Objective Approach —how flexible is this standard?) o The Characteristics of a Reasonable Person : Appropriate level of knowledge or skill expected of members of the community o Smith v. Lambey : Retired investment banker built a home on top of the bay; he honked his horn to warn honking ships : Not liable for not knowing what the ships were signaling : Liable because he knew he did not know and so he should not have interfered
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o If you come from another area with different common community knowledge, D is still expected to rise to the level of the community : Space that they physically occupy : Drivers (bus/truck) are expected to know the width and height of their vehicle : Unknown unknowns : Known unknowns o Things you know you don’t know : The reasonable person does not attempt things which require specialized knowledge and training o Flexibility In The Reasonable Person Standard : Emergency o The defendant acting in a predicament is not expected to employ the same level of judgment and reflection as would a reasonable person not in an emergency o Unavailable where the defendant’s tortious conduct contributed to the creation of the emergency o Unavailable when the D is negligent for failing to anticipate an emergency : Ex: fire, drowning, etc : Physical Conditions o The ’s own physical qualities may be taken into account because they are easily measured and perceived as tangible : Mental Conditions o The insane are to be held to a standard of sanity because the reasonable person is deemed sane o Policy: mental disability is too hard to measure, too easily feigned : The Effect of Superior Abilities, Skill, or Knowledge o Experts are only held to a higher standard if they hold themselves out as someone with expertise THE CHILD STANDARD = child of similar age, intelligence, and experience Majority Rule o Child Standard applies only when the child is engaged in child activities o The average reasonable person standard applies when the child is engaged in adult activities : Ex – driving, operating a motorcycle Minority Rule (Daniels v. Evans) o Child = Defendant, then the average reasonable person standard applies
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o Child = Plaintiff, then the child standard applies
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This note was uploaded on 09/21/2009 for the course LAW All taught by Professor All during the Fall '09 term at University of the West.

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Jen's Torts Outline - TORTS NEGLIGENCE a. Negligence The...

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