Negligence Outline

1. NEGLIGENCE

   1. Generally

      1. Rest. 3d of Torts § 3: Negligence

When determining whether a person has been negligent, it is relevant to consider:

• Whether their conduct lacked “reasonable care” given the circumstances.

• The foreseeability that harm could result.

• The foreseeable severity of the possible harm.

• The burden of precautions which could have reduced or eliminated the risk of harm.

  1. Rest. 3d of Torts § 2: Recklessness

A person is reckless when:

1. She acts creating a risk of harm obvious to a reasonable person; and

2. The precaution necessary to reduce the risk is so slight relative to the risk that her failure to assume the burden demonstrates her indifference to the risk.

   1. Duty

• Duty is the legal standard of care which Δ owed to Π. It is a question of law, to be decided by the court in light of the circumstances.

• In ordinary cases, the legal standard of care is supposed to be proportional to the risks created by one’s conduct.

• In considering whether to impose a duty, the court will examine:

  • The foreseeability and extent of the likely harm from Δ’s conduct;

  • The burden of precautions necessary to reduce the harm;

  • The effect on safety such precautions would realize; and

  • The administrative costs of imposing such a duty.

    1. The Reasonable Person Standard

• Objectivity: The reasonable person standard is based on what a hypothetical reasonable person would do in the circumstances if they were exercising ordinary prudence.

• Assumption of Duty: Duty attaches to a Δ who affirmatively undertakes to rescue Π. Δ then has a duty to use reasonable care to ensure he does not leave Π worse off than he found him.

• Exceptions:

  • Physical Characteristics: A person’s legal duty may be limited by disabilities or other characteristics which make it impossible for her to discharge her duty to an ordinary standard of care.

  • Mental Characteristics: The reasonable person standard is based on a person of average intelligence. However, lacking average intelligence does not limit a person’s duty to others. Socially, we may argue that people should either be held liable for the risks they create to others when they engage in certain activities or should abstain from those activities if they are unprepared to assume such liability.

  • From a policy standpoint, it is difficult to identify who would be truly merit less duty and who merely exercised (and should be liable for) bad judgment.

• Custom: It is not necessarily the standard of care which is customary; it is possible for Π to show that the customary standard is not reasonable, or for Δ to show that the customary standard is excessive.

  • The customary standard of care is evidence of the reasonable standard of care, but not dispositive.

  • (See: The T.J. Hooper / weather radios on tugboats)

• Anticipating the Conduct of Third Parties: A reasonable person may be expected to anticipate the actions of third parties.

  • Negligence: Δ may be responsible to anticipate reasonably foreseeable negligence by others.

  • Crime: Generally, tort law does not assign a duty to foresee the intentional crimes of third parties, with such exceptions, such as where there is prior knowledge of a person’s criminal tendencies, or where there is a special relationship between Δ and the criminal. There are occasions where A will be held liable for reasonably foreseeing B will commit a crime against C.

    1. Special Duty

       1. Children

• Children are held to an age-appropriate standard of care.

  • Some states subscribe to the Tender Years Doctrine. Under the TYD:

    • A child under 7 owes no legal duty to anyone and cannot be negligent.

    • A child between 7 and 14 owes a legal duty scalable to his age/experience.

    • A child over 14 is held to a reasonable person standard.

  • Under TYD, a child of any age engaging in adult activities is held to a reasonable person standard.

  • Negligent entrustment: an adult may be held liable for handing over a dangerous instrumentality to a child.

• Duty to Supervise: Parents of a negligent child can be held liable for their children’s torts only when:

  • They had the opportunity to control the child; and

  • They were on notice because of the child’s prior conduct.

    1. Professionals

Learned professionals (e.g., physicians, lawyers, engineers, accountants, architects) are held to a standard of care of a reasonable person in good standing within their profession.

• Professionals will typically be held to a national standard (i.e., it would not be probative what kind of care local doctors exercise if it substantially differs from the national norm).

• Expert witness testimony is required to show the standard of care in a profession.

  • The standard of care is defined as what more professionals in good standing THINK they should do.

  • Unlike in other settings, custom is not probative of the professional standard of care; If 2/3 of doctors THINK they should wash their hands before operating, but only 1/3 actually do, the court must conclude that the reasonable standard of care calls for all doctors to wash their hands before operating.

  • The jury is not free to second-guess a professional standard of care, as they would be in ordinary cases.

    1. Premises Liability

Property owners have a duty to protect visitors to their property from physical hazards which occur there. Note that premises liability applies to the possessor of the property, not the owner. In the majority view, a property owner’s duty depends upon the class of visitor to his property:

• Trespassers are people who enter a property without express or implied permission from the land owner.

  • If Δ has no reason to know Π is trespassing on his land, then his duty of care is zero.

  • If Δ has reason to know Π is trespassing on his land (i.e., discovering him there, or reasonably expecting he will come, even without permission), Δ has a duty to protect Π against known, man-made hazards.

• Licensees are people who enter a property with the owner’s implied or express permission, without conferring any benefit upon the...

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