Torts Negligence

  1. Overview
    To recover for negligence, the plaintiff must establish each of the following elements bya preponderance of the evidence (that is, by more than 50%) to establish a prima facie case: duty, standard of care, breach of duty, cause-in-fact, proximate cause (scope ofliability) and damages.
  2. Historical Development
    • Pre-negligence tort liability was based on a rather rigid writ system. The two writs mostrelevant to tort liability were “trespass” and “trespass on the case” (or “case”). The writ
    • of trespass, for which liability was strict, came to cover direct and immediate harms.
    • Plaintiffs who suffered indirect harms were required to prove some fault on the part of
    • the defendant to recover under the writ of case. Beginning in the mid-1800s, American
    • courts began to reject the writ system, replacing it with an approach focusing on specifictorts such as negligence. Negligence has become the predominant basis for torts liability.
  3. Standard of Care
    The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. Failure to meet this standard is characterized as breach of duty.
  4. Reasonable Person
    • The most common standard of care in negligence law commands the defendant to act aswould a reasonably prudent person in the same or similar circumstances. If the defendant
    • does so, she is protected from negligence liability. Failure to do so constitutes
    • unreasonable conduct and, hence, breach of duty. The reasonable person standard is an
    • objective standard that compares the defendant's conduct to the external standard of a
    • reasonable person. Thus, the law imposes on each person of society an obligation to
    • conform to the objective reasonableness standard. There is much debate about the
    • fairness of this objective standard. Debate centers around the extent to which there is flexibility in this objective standard.
  5. The Characteristics of the Reasonable Person
    • The reasonable person -- jury decides represent the community norms. The reasonable person cannot be expected to be infallible. Further, the objective standard assumes that the reasonable person possesses the general experience of the community. It is the knowledge and understanding
    • generally held by members of the community that is relevant.

    • Using the standard of the reasonable person under the same or similar circumstances,
    • flexibility can be added through the “circumstances” part of the analysis. Ultimately, in
    • most jurisdictions, a jury will be permitted to consider the physical conditions of the
    • defendant and that the defendant was acting under emergency conditions. Most other
    • characteristics, such as mental conditions or inexperience, are not taken into account.
  6. Emergency
    • Nearly all states permit the jury to consider in its determination of the defendant's
    • reasonableness evidence that the defendant was acting under emergency conditions not of
    • the defendant's making. The fact that the defendant was acting in an emergency does not
    • necessarily exculpate the defendant from liability.
  7. Physical Conditions
    • As a general principle, because they are easily measured and perceived as tangible, thedefendant's own physical qualities may be taken into account by the jury in the breach
    • determination. Just because the party's physical condition is taken into account does not
    • mean that she will be exonerated, however, as sometimes the physical condition of the
    • party requires the use of greater care.
  8. Mental Conditions
    • Most courts treat mental conditions as wholly irrelevant for purposes of negligence liability. The insane are held to a standard of sanity and people with cognitive disabilities
    • are held to a level of normal intelligence.
  9. The Effect of Superior Abilities, Skill or Knowledge
    • The standard of care does not change for those with superior skills although the defendant's special skills may affect the jury's breach determination. The reasonable person standard sets the minimum of community expectations, and those able to provide
    • more are expected to do so.
  10. Gender Bias and the Reasonable Person
    • Most courts have replaced the “reasonable man” with a “reasonable person,” believingthat this word change manages to remedy the male bias of the standard and the exclusion
    • of women from the standard. Many feminist scholars disagree that a simple word change
    • brings about an end to gender bias in the standard. Ultimately, the debate about the proper standard will continue, with some advocating a gender-inclusive standard and
    • others arguing for a standard that focuses on the unique experiences of women.
  11. The Child Standard of Care
    • Most jurisdictions hold children to a variation of a standard that compares their conduct to other reasonable children of the same age, experience, and intelligence under like
    • circumstances. While it is objective in that it compares the child to an external standard
    • of other children, it is far more subjective than the adult reasonable person standard as it
    • allows the jury to consider the child's specific qualities such as experience and intelligence.
  12. Adult Activities
    • Many jurisdictions have concluded that children should not be entitled to special treatment when they are engaged in adult or inherently dangerous activities, such as
    • driving a car.
  13. Degrees of Negligence
    • The notion of “highest” degrees of care makes little sense. Such language cannot bejustified in light of a standard of care requiring the defendant to act as a reasonable person under the same or similar circumstances. A defendant is negligent because of the failure to exercise reasonable care, and the amount of due care required of a defendant
    • will vary with the circumstances.
  14. Negligent misrepresentation
    A careless or inadvertent false statement in circumstances where care should have been taken.
Card Set
Torts Negligence