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The Elements of Negligence

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2 The Elements of Negligence
PRTR Law 485

3 Negligence and Liability
This field of law comes initially from common law It was and still is known as TORT law Statutory law has been added to the common law, dealing with things like immunity, defense and allocation of responsibility

4 Negligence and Liability
Deals mostly with wrongs to a private party or private interests versus the criminal law, where the main aim is to protect overall societal interests. Can an act constitute both a tort (negligence) and a criminal act?

5 Negligence and Liability
Negligence is the middle of the road as far as responsibility under tort law In the text (chap 2 p 50 fig 2.1) is the “spectrum” of liability versus conduct.

6 Impacts of Type of Conduct

7 Elements of a Negligence Case
Plaintiff must allege and prove 4 elements to win a negligence case: defendant owes plaintiff a duty to act reasonably defendant breached that duty the defendant’s conduct caused the injury or damage the plaintiff suffered injury and damages

8 Existence of a duty to act reasonably
do not owe duty to every one owe duty to those who would foreseeably be harmed by conduct Bishop v Chicago (1970) 121 Ill. App. 2d 33 Febesh v. Elcejay Inn Corp. (1990) 555 N.Y.S.2d 46 from the text Hotel, Restaurant and Travel Law, Cournnoyer, Marshall and Morris, case involved bee stings at outdoor event.

9 Breach of duty How can you tell when duty is breached?
The “reasonable person of ordinary prudence” standard is used to judge conduct This person uses ordinary care and skill and “does not have bad days, is always up to standard, a personification of the community ideal of reasonable behavior.” from the text Hotel, Restaurant and Travel Law, Cournnoyer, Marshall and Morris (1993) Question of breaching a duty and the standard of care is for the trier of fact to determine

10 Breach of Duty A professional may be held to a higher standard of care. E.g.. The reasonable and prudent doctor Cases in duty and its breach are often fact intensive and the 4 elements may not be identified. Thomas v. Grand Hyatt Hotel (1990) 749 F. Supp. 313

11 Proximate Cause The breach of the duty must be the proximate cause of the injury. Notice that this involves the concept of foreseeable harm again.

12 Proximate Cause “A proximate cause is the direct and immediate foreseeable connection between a breach of duty and a resulting injury. Proximate cause means the injury must have been caused by the breach of duty; in other words, there must be a cause and effect relationship between the injury and the unreasonable conduct. The connection also must be direct or immediate, so that a reasonable person could foresee the potential danger of the careless act.” from Hotel, Restaurant and Travel Law, Cournnoyer, Marshall and Morris (1993)

13 Injury and Damages The plaintiff must have suffered some injury to his or her body or property as a result of the act of the defendant

14 Premises (e.g. a hotel) In the case of an injury on a premises, the duty owed the plaintiff would depend on the type of visitor. Invitee - members of public invited onto the premises to conduct business with the hotel. Licensee - person lawfully on the premises but has entered the premises for his or her own purposes, not to further the business interests of the hotel. Trespasser - person not lawfully engaged in an expected business practice of the hotel, e.g. car cutting through parking lot, people jumping fence to swim in pool etc. Difference is in legal duty owed to different type of visitor from Inn Keeper’s Liability Management, (1995) Bakken & Abele There are also people who do not fall into any of the above categories Some states have abolished these distinctions by statute

15 Premises (e.g. a hotel) Duty owed to invitees Montes v Betcher (1973) 480 F.2d 1128 Lutz v. Goodlife Entertainers (1973) 208 Ill.App.3d 565 Duty owed to licensees Steinberg v. Irwin Operating Co. (1956) 90 So.2d 460 Duty owed to trespassers Hanson v. Hyatt Corp (1990) 196 Ill.3d 618 Duty owed to others Fedie v. Travelodge (1989) 782 P.2d 739


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