This is an extract of our Negligence document, which we sell as part of our Tort Law Outlines collection written by the top tier of Oklahoma City University School Of Law students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Tort Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
1. Introduction Negligence is an allpurpose cause of action that can be tailored to fit almost every kind of human activity imaginable.
To establish a cause of action in negligence, plaintiff must prove facts that establish each of 5 elements: a) Duty Members of society owe a duty to act reasonably to avoid causing physical harm to each other. This does allow for exceptions in certain situations (not legally required call 911 for stranger having heart attack)
b) Breach of Duty Once duty has been established, must show that the defendant failed to act reasonably (rather breached the duty) 1st decide what would be reasonable under circumstances 2nd find that defendant failed to meet the standard established above.
c) Causeinfact (causal link) Must prove connection between negligent conduct & harm suffered.
d) Proximate Cause A single negligent act may produce untold & unforeseeable consequences, but defendant is not necessarily liable for all the damage or harm done.
e) Harm It is necessary for plaintiff to suffer actual, tangible harm in order to make out prima facie tort of negligence An actor has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.
A Failure to breach a duty should not be confused with "no duty".
2. General Standard of Care: Negligence Balancing Most often a jury decides if a defendant's conduct was unreasonable & therefore negligent. But where judge concludes that reasonable persons cannot differ, the judge sits as a super jury with the power to decide, under the circumstances, that negligence has not been or cannot be established.
Learned Hand risk balancing...
3. Qualities of the Reasonable Person This is flexible and is also dependent on the times in society.
Generally actor (for negligence) is judged by the standard of what a reasonable person would have done under the same or similar circumstances.
Vaughn v. Menlove (1st case of reasonable person) Hay stack next to plaintiff's house could spontaneously combust. Menlove built a chimney thinking would help but actually cause combustion, though stupid, the court said must judge by what a reasonable man would do in the same situation.
a) What the reasonable person knows or should know (like the movable parts of a car if going to drive, ie tire blowout). Restatement 3rd SS12 Knowledge and Skills "If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person." Less knowledge will not excuse you, you will be held to the reasonable standard of care.
b) How the Reasonable Person Responds to Emergency
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