9-13-19 Torts Notes - Leiter PDF

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Austin Scherer Torts Notes III. Negligence B. Standard of Care § 3. Negligence  The person does not exercise reasonable care under all the circumstances  Primary Factors: o The foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. 1. Reasonable Person Standard a. Vaughn v. Menlove i. “But his slips are no less troublesome to his neighbors than if they sprang from guilty neglect…Decline to take his personal equation into account”Holmes, “the clumsy man” ii. Standard formula for instructing the jury: “a reasonable man of ordinary prudence.” 1. A jury is composed of such reasonable and prudent persons, and you may each ask yourself, Did the defendants do, or fail to do, anything which, under the circumstances, I would not have done would have done. b. Delair v. McAdoo i. The reasonable person will not forget what is actually known, and that forgetfulness does not excuse negligence. But when distracted attention, lapse of time or other similar factors make it reasonable to forget, it can be found that there is no negligence. c. Trimarco v. Klein d. Cordas v. Peerless Transportation Co. i. The failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances ii. The sudden emergency instruction is intended only for circumstances in which a defendant “has acted in response to a perceived peril and has made a choice which in hindsight may be regarded as unwise or illconsidered, but which was not unreasonable or imprudent under the stress of surrounding circumstances.” iii. The event must be unforeseen, sudden, and unexpected 1. Encounters with “black ice” on street, falling boulders, swooping airplanes, and darting children and animals all sudden emergencies.” 2. If the emergency is created by the negligence of the actor, the emergency doctrine does not apply. a. It has been said, however, that it is not the conduct after the emergency has arisen that the law does not excuse, but the negligent conduct that brought it about.

Austin Scherer Torts Notes III. Negligence B. Standard of Care 3. Not all jurisdictions permit a separate jury instruction e. Roberts v. State of Louisiana i. Blindness as well as deafness, no sense of smell, short stature, paralysis) ii. “A blind man may not rely wholly upon his other senses to warn him of danger but must use the devices usually employed, to compensate for his blindness” iii. Restatement suggests actor should be held to higher standard but not citing any cases relating to superior physical characteristics as distinguished from superior knowledge iv. Intoxication while impairing, is voluntary f. Robinson v. Lindsay i. “What is reasonable to expect of children of like age, intelligence and experience.” ii. After the judge has determined which standard, the jury applies it to the particular set of facts before it; but if the only conclusion to be drawn from the evidence is that the child has behaved unreasonably in view of the child’s estimated capacity, the judge may direct a verdict against the child iii. Example: A child under the age of seven may be, as a matter of law, incapable of any negligence; one between seven and 14 may be presumed incapable, but may be proved capable; one over 14 may be presumed capable, but may be proved incapable iv. Will hold that extremely young children are without the capacity v. Provides that children less than five years of age are incapable of negligence vi. The position that the special rule of children should not be applied when the actor engages “in an activity which is normally undertaken only by adults, and for which adult qualifications are required.” vii. There are some decisions in which a similar allowance has been made for the physical and mental deficiencies of old age, but all have involved plaintiffs and have tended to focus on particular infirmities rather than age itself g. Breunig v. American Family Ins. Co. i. Most courts do not make any allowance for the mental illness of the defendant-the defendant is judged by the standard of the reasonable person ii. The courts are considering the conduct of the defendant; some are considering the conduct of the plaintiff in order to determine whether the plaintiff’s own negligence contributed to the cause of the accident....