Upload
curtis-manning
View
215
Download
1
Tags:
Embed Size (px)
Citation preview
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
• Act – Doing an affirmative act
• Driving a car• Performing CPR• Extinguishing a fire
Copyright © 2007 Thomson Delmar Learning
Omission
• 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
• 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