Negligence Chapter 8
Copyright © 2007 Thomson Delmar Learning Objectives Define and identify elements of negligence. Explain concepts: –Duty –Standard of care –Breach –Damages and proximate cause
Copyright © 2007 Thomson Delmar Learning Explain what the standard of care is for professionals and those with specialized training. Identify types of evidence that can be used to establish the standard of care for a professional. Objectives
Copyright © 2007 Thomson Delmar Learning Explain defenses to negligence: –Assumption of risk –Contributory negligence –Comparative negligence –Last clear chance doctrine –Rescue doctrine Objectives
Copyright © 2007 Thomson Delmar Learning Explain Fireman’s Rule. Define gross negligence and recklessness. Explain joint and several liability. Identify common types of activities for which strict liability is imposed. Objectives
Copyright © 2007 Thomson Delmar Learning Negligence Many definitions exist Our definition –Failure to exercise the care that the reasonably prudent person would have exercised under the circumstances, which causes damages to another
Copyright © 2007 Thomson Delmar Learning Elements of Negligence Three elements 1.Act/omission 2.Causing damages to another 3.Breach of the standard of care
Copyright © 2007 Thomson Delmar Learning Act –Doing an affirmative act Driving a car Performing CPR Extinguishing a fire
Copyright © 2007 Thomson Delmar Learning Omission –Failure to do something you are legally required to do –Concept of legal duty At common law –No duty to act even if someone is in trouble
Copyright © 2007 Thomson Delmar Learning Damages –Personal injury, property damage, or money lost Damages do not include: –Hurt feelings or being wronged in principle
Copyright © 2007 Thomson Delmar Learning Causation Damages must be caused by defendant’s negligence –Proximate cause = legal cause –Requires more than “but for” cause
Copyright © 2007 Thomson Delmar Learning Breach of the Standard of Care Act or omission must have failed to live up to the reasonably prudent person standard Standard of care Who or what is the reasonably prudent person?
Copyright © 2007 Thomson Delmar Learning Reasonably Prudent Person An imaginary common person who is very careful –"When a person, acting in a given set of circumstances, fails to exercise that degree of care for the safety of another which a reasonably prudent person would have exercised in the same or similar circumstances, said person is said to be negligent.“ Rhode Island Supreme Court
Copyright © 2007 Thomson Delmar Learning Standard works for normal daily activities that all people are familiar with –Driving a car –Cooking a meal Reasonably Prudent Person
Copyright © 2007 Thomson Delmar Learning Reasonably Prudent Professional Reasonably prudent professional standard –To evaluate those with special knowledge or expertise –Standard of care expected of someone with professional qualifications
Copyright © 2007 Thomson Delmar Learning Standard of care is a question of fact for the jury Evidence of standard of care comes from –Expert witnesses –Laws and regulations –Industrywide standards Reasonably Prudent Professional
Copyright © 2007 Thomson Delmar Learning Fire Service Negligence Cases Kenavan v. New York McGuckin v. Chicago Harry Stroller v. City of Lowell
Copyright © 2007 Thomson Delmar Learning Emergency Medical Care and Negligence Consent to treat, battery, and negligence Patient abandonment
Copyright © 2007 Thomson Delmar Learning Defenses to Negligence Contributory negligence Assumption of the risk Comparative negligence Last clear chance Rescue doctrine
Copyright © 2007 Thomson Delmar Learning Fireman’s Rule An exception to the rescue doctrine Bars suits by firefighters and police officers for injuries sustained at emergencies –States have differing applications
Copyright © 2007 Thomson Delmar Learning Fireman’s Rule Modern Limitations Injured firefighters may sue if: –Defendant intentionally set fire –Owner or tenant was reckless or grossly negligent in starting fire –Occupant failed to warn FFs of a dangerous condition
Copyright © 2007 Thomson Delmar Learning Strict Liability Liability without regard to fault Unreasonably dangerous activities Most common –Explosives –Wild and dangerous animals –Nuclear reactors
Copyright © 2007 Thomson Delmar Learning Even intentional conduct of others will not stop liability Economics –Damages or risk of harm must be incorporated into the price as a cost of doing business Strict Liability
Copyright © 2007 Thomson Delmar Learning Cost can be spread among users, as opposed to being borne solely by victims Further incentive for involved parties to exercise utmost care Strict Liability
Copyright © 2007 Thomson Delmar Learning Respondeat Superior Employer is liable for acts of employee committed within scope of employment Respondeat superior does not require negligence by employer Employee wrongdoing must be within scope of employment
Copyright © 2007 Thomson Delmar Learning Joint Liability If the negligence of two or more parties causes damages to a plaintiff Each is liable to plaintiff for 100 percent of damages –Defendants can later recover from each other a pro-rata share based upon fault
Copyright © 2007 Thomson Delmar Learning Summary Definition of negligence Defenses to negligence Fireman’s Rule Gross negligence and recklessness
Copyright © 2007 Thomson Delmar Learning Strict liability Respondeat superior Joint and several liability Summary