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Chapter 8: Negligence and strict liability

1. Negligence involves conduct that creates an unreasonable risk of harm.

a. Basis of liability for negligence is the failure to exercise reasonable care,
under given circumstances, for the safety of another person or his property, which
failure causes injury to such person or damage to his property.

2. Strict liability is not based upon the negligence or intent of the defendant but
rather upon the nature of the activity.

3. Negligence : A person acts negligently if the person does not exercise
reasonable care under all circumstances.

a. A person is under duty to all others at all times to exercise reasonable care
for the safety of the others’ person and property.

b. An action for negligence consists of 5 elements:

i. Duty of Care

ii. Breach of Duty

iii. Factual cause

iv. Harm

v. Scope of liability

4. Breach of Duty of Care

a. In determining whether a given risk of harm was unreasonable, the law considers:

i. The foreseeable probability that the person’s conduct will result in harm

ii. The foreseeable gravity or severity of any harm that may follow

iii. The burden of taking precautions to eliminate or reduce the risk of harm.

b. Standard of conduct, usually determine by a cost-benefit or risk-benefit
analysis.

and experience under all the circumstances.  If the statute is found to be applicable. Reasonable person standard of conduct may be established by legislation or administrative regulation. the majority of the courts hold that an unexcused violation is negligence per se. iv. The standard of conduct to which a child must conform to avoid being negligent is that of a reasonably careful person of the same age. ii. vi. The reasonable person standard is external and objective. Emergencies viii.In special circumstances. (Physicians etc) vii.violation conclusively constitutes negligent conduct. Reasonable Person is a fictitious individual who is always careful and prudent and never negligent.A person’s mental or emotional ability is not considered in determining whether conduct is negligent unless the person is a child.  Courts may adopt the requirements of the statute as the standard of conduct if the statute is designed to protect against the type of accident the conduct causes and the victim is within the class of persons the statute designed to protect. a person who has not created risk of harm to others ordinarily has no duty of care to another. and experience of adults.person who are qualified and who practice a profession or trade required to exercise that care and skill. The law applies an invidualized test because children do not possess the judgment. Mental disability.  Legislative or administrative rules normally establish minimum standards. Duty to Act. Physical disability v. intelligence. . i. knowledge. iii. c. Superior skill or knowledge. intelligence. ix.

 A person who discontinues aid or protection is under a duty of reasonable care not to leave the other in a worse position.  A person who voluntarily begins a rescue by taking charge of another who is imperiled and unable to protect himself incurs a duty to exercise reasonable care under the circumstances.  Special relations between the parties may impose a duty of reasonable care upon the defendant to aid the scope of the relationship.  An invitee is either public invitee or business visitor. Factual Cause. 6.  A licensee is a person who is privileged to enter or remain upon land only by virtue of the lawful possessors consent.  Possessor must warn licensee of dangerous activities and conditions of which the possessor has knowledge or has reason to know and which the licensee does not and is not likely to discover.Liability for the negligent conduct requires that the conduct in fact caused harm to the plaintiff. possessor is under duty to exercise reasonable care to protect invitee against dangerous conditions they are unlikely to discover. . 5.  Good Samaritan statutes encourage voluntary emergency care. x. Res Ipsa Loquitur: The thing speaks for itself a. A rule of circumstantial evidence has developed that permits the jury to infer both negligent conduct and causation from the mere occurrence of certain types of events. Duty of Possessors of land  Possessor is required to exercise reasonable care for trespassers safety in carrying out on her activities and to warn trespassers of potentially highly dangerous conditions that the trespassers are not likely to discover.

The court determines the extent of protection for a particular interest as a matter of law on the basis of social policy and expediency. Defenses to Negligence a. The but-for test is not satisfied when there are 2 or more causes. 7. Virginia. b. Contributory Negligence. a.Final opportunity to avoid injury b. Comparative Negligence.Damages are divided between the parties in proportion to their degree of negligence c. A widely applied test for causation in fact is the but-for test: A person’s conduct is a cause of an event if the event would not have occurred but for the person’s negligent conduct. North Carolina. and which he is legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm i. A few states have not adopted (Alabama.C) ii. Last clear chance.A plaintiff who has voluntarily and knowingly assumed the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover such harm. Assumption of Risk. Superseding cause 8. 9. Implied assumption of risk (plaintiff voluntarily proceeds to encounter a known danger) . Express assumption of risk (plaintiff expressly agrees to assume the risk of harm) ii.Conduct on the part of the plaintiff falls below the standard to which he should conform for his own protection. and D. i. each of which is sufficient to bring about the harm in question and each of which is active at the time the harm occurs. Maryland. Scope of Liability a.

Defense to strict liability a. a. . Strict liability (absolute liability/liability without fault). Contributory negligence b. ii. Keeping of Animals i. b. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors. 11. Must be voluntarily. ii.  Keepers of farm animals are not strictly liable for harm caused by their trespassing animals that are allowed to graze freely. The activity is not one of the common usages. 12.  Wild animals and domestic animals. The doctrine of strict liability is predicated upon the nature of the activity in which defendant is engaging. Abnormally Dangerous Activities i. 10. Trespassing animals  Keepers of animals are not strictly liable if those animals incidentally stray upon land immediately adjacent to a highway on which they are being lawfully driven. Nontrepassing animals  Owners and possessors of wild animals are subject to strict liability.people may be held liable for injuries even though they have not acted intentionally or negligently. Activities giving rise to strict liability: a. Comparative Negligence c. Assumption of Risk i.