1 Physical impairment blindness etc OC is such care as an ordinarily prudent

1 physical impairment blindness etc oc is such care

This preview shows page 10 - 11 out of 33 pages.

1. Physical impairment ( blindness, etc.): OC is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances. a. Sudden incapacitation (stroke, heart attack, etc.) is not foreseeable, the standard of care is that of a reasonable person under similar circumstances. 2. Mental capacity is NOT considered as part of the “circumstances.” (Intoxication, mental illness (retardation, Alzheimer’s, etc.), insanity, and low intelligence do not release a defendant from liability). a. Creasy v. Rusk : Alzheimer pt kicks P, causes injury. Court holds mental disability does not excuse a person from liability i. HOWEVER mental patients do not have a duty to their medical caretakers. One-way street of liability. b. If persons are to ‘live in the world’ then they are held to the same standard of care of reasonable person under same circumstances without regard to D’s capacity or control or ability to understand the consequences c. Inclusive social policies: since rights of disabled have been enforced, disabled persons should be treated the same as non-disabled persons 3. Special abilities or strength: D is required to exercise the OC that a reasonable person with the same knowledge, strength, etc. would reasonably exercise under the circumstances. a. Hills v. Sparks : P killed by D’s neglig driving of earth-mover truck; court held that D’s superior knowledge in how to operate machine should be the standard of duty to apply 4. CHILD’S STANDARD OF CARE : The duty to exercise the same care that a reasonable child of the same age, experience, or intelligence would use a. Policy Rationale: children need to be children i. Hudson-Connor v. Putney : adult standard does not apply when using a golf cart b. Exception : Adult or Inherently dangerous activity the child will be held to adult’s SOC i. Policy Rationale: discourages kids from engaging in inherently dangerous activities. ii. Robinson v. Lindsay : 13 year-old defendant held liable for snowmobile accident. c. For very young children, there is no negligence. d. Compare fact situations and find the operative legal principal. It may be narrow or broad. If a hypothetical occurred where 2 children were injured playing with fireworks, exceptions of adult, inherently dangerous, or driving could possibly be applied. c. P laintiff must establish a theory of breach (the inadequacy of the defendant’s response to the plaintiff’s slowing down; the defendant’s following too closely, going too fast, not paying attention, etc.) in order to establish that a defendant has breached the ordinary standard of care. d. Negligence Per Se: Specification of Particular Standards or Duties i. Negligence as a matter of law, in violation of statute. ii. NPS alters the way we think about duty, and replaces the SOC with the statute. It does not chance the other elements of negligence analysis.
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