Elements of Prima Facie Negligence Claim PDF

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Torts I and II
Notes from Class/Casebook
Lecture Notes...

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Torts I and II Notes from Class/Casebook

I) NEGLIGENCE: THE DUTY OF CARE A) Elements of Prima Facie Negligence Claim 1) Duty: Members in a society owe a duty to act reasonably to avoid causing physical harm to each other\ (a) NO DUTY TO RESCUE 2) Breach of Duty: Once a duty has been established, the plaintiff must establish that the defendant failed to act reasonably (a) Fact finder must: decide what constitutes reasonable care under the circumstances and then find that the defendant failed to meet that standard (b) HERE is where the STANDARD OF CARE is determined (c) For this element we look at what the standard of care is and if the defendant breached this standard (d) Breach of duty=negligence 3) Cause-in-Fact: plaintiff must prove a connection between the defendant’s negligent conduct and the harm suffered 4) Proximate Causation 5) Harm: It is necessary for the plaintiff to suffer actual, tangible harm B) Negligence Balancing 1) In general, whether under a certain set of circumstances conduct is negligent is for the trier of facts (a) Must often the jury decides whether the defendant’s conduct was unreasonable and hence negligent but where the trial judge concludes that reasonable persons cannot differ, the judge decides that negligence has not been or cannot be established (a) “It could hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that it is negligent to leave it lying on the ground in the yard. Restatement sec. 3 Negligence: A person acts negligently if the person does not exercise reasonable care under all circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are 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

The demurrer is sustained” –Lubitz v. Wells 2) The Hand Test

(a) Liability if: Burden of taking adequate precautions < Probability of harm x L gravity of injury (a) See U.S. v. Carroll Towing (b) “When the possibility of escape multiplied times the gravity of harm, ifit happens, exceeds the burden of precautions, the risk is unreasonable and the failure to take precautions is negligence” –Washington v. Louisiana Power & Light Co. (a) Although there was a cognizable risk that the antenna stationed in the corner of Washington’s backyard could be lower and moved within a dangerous proximity of the powerline, that the possibility could not have been characterized as an unreasonable risk and the power company’s failure to take additional precautions against it was not negligence...