Outline Torts2 - Outline Torts Spring 2008 1L Negligence -...

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Outline Torts Spring 2008 1L Negligence - Irresponsible, Careless, or blameworthy conduct Calculus of risk - A risk is reasonable when due care is exercised Hand formula for calculating risk – Pb X Mg > Cp (probability of event occurring times the magnitude of harm should be greater then the cost to prevent it) – if the cost of prevention is cheaper then the cost of injury then the reasonable person would pay the cost of prevention Pb - If the probability of harm is low, then its doubtful that the breached his duty Measures the likelihood of harm - π must show probability not possibility Mg - If the magnitude of harm is great then it would be unreasonable to not prevent harm Not looking at actual harm, looking at the foreseeable harm that could flow from the injury causing event – the more serious the potential injury the smaller probability of harm needed for liability Cp - If the burden of avoidance is not burdensome then it would be unreasonable not to avoid If there is a reasonable means to make activity safer it must be taken Act must be out of one’s will in order to support a cause of action based on negligence. It can also be based on the failure or omission of the defendant to act if he is under a specific duty. To recover for negligence the π must establish each of the following elements by a preponderance of the evidence (more than 50%) to establish a prima facie case: ●Duty ●Breach ●Causation ●Harm Duty Legally recognized relationship One who engages in risk creating conduct generally owes a duty to avoid causing foreseeable injury to foreseeable π s Misfeasance – doing something badly that you had a right to do Victim is worse off as a result of the wrongful acts of the Active misconduct - doing something a reasonable person would not Negligent Omission - Failing to do something that a reasonable person would do while engaged in activity Nonfeaseance – failure to perform or act where required by law Passive action Failure to take positive steps to benefit others Protect them from harm not created by an wrongful act of ∆ General Rule Person does NOT have a duty to aid another (with exception of affirmative duties) Affirmative Duties Rescue Tortious behavior caused the peril ∆s act caused the π s peril •∆ causes the peril he has a duty to rescue Special Relationship Parent-child, husband-wife, master-servant, siblings, companions on a social venture had an implicit understanding that one would come to the aid of the other, if necessary, statutory duty, contract or law common carrier – passenger, innkeeper – guest, ship captain – seaman, employer – employee, school – student, business – customer Does NOT apply to gratuitous promises for aid or service Gratuitous Undertakings Common law - cannot leave the victim in a worse condition Modern – once ∆ begins to intervene he has an obligation to follow through as a reasonable person would
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Outline Torts2 - Outline Torts Spring 2008 1L Negligence -...

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