Torts - Themis

False Imprisonment - types of restraint

1. physical barriers 2. physical force 3. threats of force 4. failure to release 5. invalid use of legal authority

Contact - Knowledge

A plaintiff need not be aware of the contact when it occurs to recover.

Assault

An assault occurs where the defenant INTENDS to CAUSE a REASONABLE APPREHENSION of an IMMINENT HARMFUL or OFFENSIVE CONTACT. 1. Intent 2. An act by D placing P in reasonable apprehension 3. of an immediate harmful or offensive contact, and 4. Causation

Standard of Care - Children (Ohio)

Children UNDER 7 years old, NOT negligent as a matter of law or for intentional torts.

Nuisance - Damages

Damages include any depreciation in the value of the property.

Trespass to Chattels - Damages/Remedy

Damages: 1. Actual damages caused (intermeddeling) ; and 2. Lose of use. Remedies: 1. Diminution in value or the cost of repair; or 2. Replevin.

Negligence - Duty (Cardozo Maj. R.)

The D is liable only to Plaintiffs who are WITHIN THE ZONE OF FORESEEABLE HARM. The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable Plaintiffs) as a result of the defendant's negligence conduct.

Defenses of Int. Tort - Initial Aggressor

The initial aggressor is not entitled to a claim of self-defense unless the other party has responded to non-deadly force with deadly force.

Negligence

To prove a claim of negligence, the P must show, by a preponderance of the evidence, the D owed a duty to the P, which he breached, causing injury.

Intent (Children and Mentally incompetent)

(Majority Rule) Children and the mentally incompetent can be held liable for intentional torts.

IIED - Damages

- Actual damages (severe emotion distress) are required - Nominal damages not available - Proof of physical injury not required - The more outrageous the conduct, the less evidence of damages required. ** IIED is the ONLY intentional tort to the person that requires damages.

Assault - Words Alone

- Words alone lack immediacy for assault. - There must be physical conduct to create immediate apprehension of pending battery. - Words CAN negate immediacy ex.1 conditional threats ex.2 future threats

Public Nuisance

1) An unreasonable interference with a right common to the public (Pollution, blocking of a public highway, or interfering with the public's use of public space). 2) Special Harm - The plaintiff has been harmed in a special or distinct way different from the public. Note: Public nuisance does not necessarily involve land, but it is included in this part of the outline because of its common historical roots with private nuisance.) Typical examples of public nuisance include air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public's use of parks or other public property.

Intentional Torts

1. Battery 2. Assault 3. False Imprisonment 4. Intentional Infliction of Emotional Distress 5. Trespass to Land 6. Trespass to Chattel 7. Conversion

Negligence Per Se - Defenses

1. Compliance was IMPOSSIBLE under the circumstances or that an EMERGENCY justified violation of the statute. 2. Violation was reasonable under the circumstances. - The defendant's violation of a statute is excused and is not negligence if the violation is reasonable in light of the defendant's physical disability or incapacitation, if the defendant is a child, or if the defendant exercises reasonable care in attempting to comply with the statute. - Specific circumstances - Confusing Statutory language (vague or ambiguous)

Defenses to Intentional Torts

1. Consent (express/implied) 2. Self Defense 3. Defense of Others 4. Defense of Property 5. Parental Discipline 6. Privilege of Arrest

Battery

1. Intent 2. Harmful or offensive contact 3. That contact must be with the P's person. 4. Causation (Substantial Factor)

Defenses to Int. Tort - No Consent

1. Mistake: Consent by mistake is valid consent unless the D CAUSED the mistake or KNEW of it and TOOK ADVANTAGE of it. 2. Fraud: Consent induced by fraud is invalid if it goes to an essential matter. 3. Duress: Consent given under duress is invalid.

False Imprisonment - Insufficient types of restraint

1. Moral pressure 2. Future threats

Standard of Care - Possessors of Land

1. One-half of all jurisdictions continue to follow the traditional rules - standard of care owed to people who come onto the land depends on whether the person is an invitee, a licensee, or a trespasser 2. Other one-half of jurisdictions - due care is owed to ALL invitees and licensees. (Trespasser may be less)

Trespass to Land - Defenses

1. Private Necessity: Ds acting under necessity have the right to use the property of others to save their own lives or more valuable property. - Private necessity is a QUALIFIED privilege - Property owner may recover ACTUAL DAMAGES from the trespasser. 2. Public Necessity: Private party may be intruded upon or destroyed when necessary to protect a large number of people from public calamities, such as the spreading of a fire, disease, or the advance of a hostile military force. - ABSOLUTE privilege -

Defense of Property

1. Reasonable Force Allowed 2. Use of deadly force NOT allowed 3. Reasonable force to prevent intrusion upon real property (Only after trespasser failed to leave after request) 4. Recapture of Chattels 5. Force to regain possession of land (no long allowed, must use courts)

Negligence - Specific class of foreseeable plaintiffs

1. Rescuer: A person who comes to the aid of another is a foreseeable plaintiff if the D negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. "Firefighter's rule" - Certain emergency personnel (e.g. police officers and firefighters) may be barred from recovering damages

Standard of Care - Bailee

1. Sole Benefit to Bailor - LESSER duty to care for the property and is liable only if he has been grossly negligent. 2. Sole Benefit to Bailee - exercise EXTRAORDINARY CARE for the bailor's property. 3. Mutual Benefit - bailee must take REASONABLE CARE of the bailed property. Slight negligence on the bailee's part will result in liability for any injuries to the property from failure to properly care for or use it.

Standard of Care - Custom

1. Within a community or industry: Evidence of a custom in a community or industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent. (Not a complete defense) 2. Safety Codes: Safety codes promulgated by industries, associations, and governmental bodies for the guidance of operations within their respective fields of interest are admissible to prove custom. 3. Professionals: A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge. 4. Physicians: - Local versus national standard - Informed consent

Conversion

A D is liable for conversion if he 1. INTENTIONALLY commits an act 2. DEPRIVING THE P of POSSESSION of his chattel; or 3. INTERFERING with the P's chattel in a manner so serious as to DEPRIVE the P of the USE OF the chattel.

Intentional Infliction of Emotional Distress (IIED)

A D is liable for intentionally or recklessly acting with EXTREME or OUTRAGEOUS conduct that causes the P severe emotional distress. 1. Intent or recklessness 2. An act by D must amounting to extreme or outrageous conduct. 3. Causation 4. Damages - P must suffer from severe emotional distress.

Trespass to Chattels

A D is liable for trespass to chattels if he INTENTIONALLY INTERFERES with the P's RIGHT OF POSSESSION by either: 1. DISPOSSESSING the P of the chattel; or 2. USING OR INTERMEDDLING with the P's chattel.

Standard of Care - Mental Characteristics

A mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge.

Duty to Retreat (Majority Rule)

A person is NOT required to retreat under the majority rule, but during the past generation, there was a trend toward requiring retreat before using deadly force unless the defendant was in (or within the curtilage of) her own home. Under the Second Restatement, a person has a duty to retreat before she may use deadly force in defense, if she can do so safely.

Defenses to Int. Tort - Self Defense

A person may use REASONABLE FORCE to defend against an offensive contact or bodily harm the he REASONABLE BELIEVES is about to be inflicted. A reasonable mistake does not invalidate the defense.

Arrest by Police

A police officer must reasonably believe that a felony has been committed and that the person she arrests committed it. Unlike a private citizen, a police officer who makes a mistake as to the COMMISSION of a felony is NOT subject to tort liability.

Felony Arrest by private citizen

A private citizen may use force to make an arrest in the case of a felony if a felony has actually been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it. Mistake of identity of the felon Ok. Mistake as to the commission of the felony NOT OK.

Private Nuisance

A private nuisance is a thing or activity that SUBSTANTIALLY AND UNREASONABLY INTERFERES with another person's USE AND ENJOYMENT of his land.

False Imprisonment - Shopkeeper's Privilege

A shopkeep's reasonable (in both duration and manner) detention of a suspected shoplifter is NOT an invalid use of authority an hence is not a false imprisonment.

Private Nuisance -Substantial Interference

A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. The interference is unreasonable if the injury caused by the defendant outweighs the usefulness of his actions. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. Conversely, a "thick-skinned" plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected. Note: Access to light is likely NOT a nuisance

False Imprisonment - Time

Any appreciable amount of time

Trespass to Chattels - Appropriate P

Anyone with the right of possession.

Standard of Care - Trespassers (Child)

Attractive Nuisance Possessor of land may be liable to injuries to children trespassing on the land if: i) An artificial condition exists in a place where the owner knows or has reason to know children are likely to trespass; ii) The land possessor knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm; iii) The children, because of their youth, do not discover or cannot appreciate the danger; iv) The utility to the land possessor of maintaining the condition is slight compared to the risk of injury; and v) The land possessor fails to exercise REASONABLE CARE.

Standard of Care - Bailor

Bailor's Duty: Duty to inform gratuitous bailee only of KNOWN dangerous defects in personal property but inform bailee for hire of defects are are KNOW or SHOULD HAVE BEEN KNOWN by the bailor had he used reasonable diligence.

IIED - Extreme or Outrageous Conduct

Conduct is extreme or outrageous if it exceeds the possible limits of human decency, s as to be entirely intolerable in a civilized society. Abusive Language may be extreme if: 1. D is in a position of authority (e.g., police, employer, school official); or 2. The P is a member with a known heightened sensitivity (e.g., young children, pregnant women, elderly).

Contact with P's Person

Contact with anything CONNECTED TO the P's person qualifies as contact with the P's person.

IIED - Intent

D must intend to cause severe emotional distress or must act with reckless disregard as to the risk of causing such distress. No TRANSFERRED INTENT.

Conversion - Damages

Damages are the full value at the time of the conversion.

Standard of Care - Invitee

Def: Someone who comes onto the land for your purpose, a mutual or joint purpose. (e.g., customer, repairman) RULE: A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. Note: Non-delegable duty: Cannot avoid the duty by assigning care of your property to an independent contractor. SCOPE: If the invitee exceeds the scope of the invitation, the person is treated like a trespasser.

Trespass to Land

Defendant INTENTIONALLY acts causing a physical invasion, or failure to leave, the land of another.

Battery - Damages (Eggshell Plaintiff)

Defendant is not required to foresee the extent of damages in order to be held liable for all damages.

Offensive Contact - Hypersensitive Person

Defendant may be liable if he is AWARE OF THE PLAINTIFF'S HYPERSENSITIVITY.

Assault - Intent

Defendant must act with the intent to either cause: 1. That apprehension; or 2. The contact itself. Example 5: I attempt to throw a rock at you, but miss hitting you. If I created imminent apprehension, then I have committed assault. The intent element is satisfied by transferred intent. D must intend to cause P's apprehension. D's own words can negate the intent. E.g., If you were not such a good friend, I would punch you, then there is not assault.

Battery - Causation

Defendant's conduct was a SUBSTANTIAL FACTOR in creating the harm.

Private Nuisance - Defense

Depends on whether the defendant's conduct was negligent, intentional, or abnormally dangerous 1. Negligent conduct - assumption of the risk or comparative negligence might apply - Compliance with state or local administrative regulations is NOT a complete defense. (e.g., not a violation of a noise ordinance) - Evidence as to whether the activity is reasonable. 2. "Coming to the nuisance" - If you move somewhere knowing about a conduct, courts are hesitant to allow you to complain that that conduct unreasonably interferes with your use and enjoyment of the land. Not a complete defense. Example 14: If you move next to a farm, courts are hesitant to allow you to complain that the farm smells like a farm. • NOT a complete defense - one factor considered by the court

Standard of Care - Bailor/Bailee (Modern Trend)

Duty of care depends on the circumstances in the light of which conduct is measured by the standard of reasonable care.

Standard of Care - Trespassers

Duty: A possessor of land is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. Discovered or anticipated trespassers: • Must warn or protect them from hidden dangers • No duty to warn them from natural conditions or artificial conditions that don't cause the risk of death. Undiscovered Trespassers: No DUTY

Standard of Care - Licensees

Enters the land with express or implied permission. (e.g., social guest) Traditional rule: Land possessor has a duty to either CORRECT OR WARN licensees of concealed dangers. - No duty to inspect for dangers, but warn of CONCEALED dangers. - Must exercise reasonable care in conducting activities on the land.

Negligence - Duty to Act (exceptions)

Exceptions: 1. Assumption of Risk: A person who voluntarily aids or rescues another is liable for any injury caused by the failure to act with REASONABLE CARE in the performance of that aid or rescue. (OHIO—if a person gives emergency care outside a medical facility and does not expect compensation for his actions, that person will not be held liable for damages for administering emergency care unless he acts willfully and wantonly.) 2. Placing Another in Peril: Duty to exercise reasonable care to prevent further harm by rendering care or aid. 3. By Contract: there is a duty to perform contractual obligations with due care. 4. By Authority: One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act. Example: A parent may be liable for failing to control the conduct of a child who uses a dangerous instrumentality to injure a plaintiff. 5. By Relationship: A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, employer-employee, or parent-child, may have a duty to aid or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

Conversion - Interference

Exercising DOMINION OR CONTROL over it. Courts consider the following factors: The length of the interference; Defendant's intent to assert a right inconsistent with the rightful possessor; Defendant's good faith; Expense or inconvenience to the plaintiff; and Extent of harm.

False Imprisonment

False imprisonment results when a person acts: 1. intending to CONFINE or RESTRAIN another with boundaries; 2. those actions directly or indirectly RESULT in such confinement; and 3. the other is CONSCIOUS OF THE CONFINEMENT or is HARMED by it.

Negligence Per Se - Compliance w/ statute

Generally speaking, compliance with a statute, regulation, or ordinance does not prove the absence of negligence.

Defenses of Int. Tort - Duty to retreat

Generally, a person is NOT required to retreat under the majority rule.

Negligence - Duty to Act

Generally, there is not duty to act affirmatively, even if failure to act appears to be unforeseeable.

IIED - Bystander

If D intentionally causes physical harm to third person, P may recover for IIED by showing prima facie case or: 1. P was PRESENT when the injury occurred, 2. P is a CLOSE RELATIVE of the injured person, AND 3. D KNEW facts 1 & 2 existed at the time. Note: do not have to prove above if it was D's design or purpose to cause P distress.

Felony Arrest by private citizen (Ohio)

If a felony has been committed or a private citizen reasonably believed that a felony had been committed, then the citizen may make a warrantless arrest and detain the person she had reasonable cause to believe committed the felony offense. Ohio Rev. Code. § 2935.04.

Defense of Others (Ohio)

In Ohio, a person may not claim defense of others if the person she defended was the initial aggressor. Ellis v. State, 596 N.E.2d 428 (Ohio 1992).

Negligence - Duty

In general, a duty of care is owed to all FORESEEABLE PERSONS who may be injured by the defendant's failure to follow a reasonable standard of care. An actor has a duty to exercise REASONABLE CARE when the actor's conduct creates a risk of physical harm.

Standard of Care - Cost-Benefit Analysis

In many cases, courts describe the primary factors to consider in determining whether the defendant has acted negligently to be: i) The FORESEEABLE LIKELIHOOD that the defendant's conduct would cause harm; ii) The foreseeable SEVERITY of any resulting harm; and iii) The defendant's BURDENS (costs or other disadvantages) in avoiding the harm. In fact, the Third Restatement defines negligence using these terms rather than the reasonable person standard.

Negligence - Standard of Care

In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant is acting in good faith or using her best efforts. A defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. In determining whether particular precautions were warranted, a jury should weigh the probability and gravity of the injury against the burden of taking such precautions.

Standard of Care - Car drivers

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). Minority: "guest statutes," which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Transferred Intent

Intent can transfer to a different person, different tort, or different person & different tort. Exceptions: intent does not transfer to IIED or conversion.

Int. Tort - Intent

Intentional if: 1. Act with purpose of causing the consequence; and 2. Act knowing that the consequence is substantially certain. (knowledge with substantial certainty)

Standard of Care - Intoxication

Intoxication is not a defense unless the intoxication was involuntary.

Trespass to Chattels - Mistake

Mistake is not a defense.

Assault - Reasonable Apprehension

Must be REASONABLE. Plaintiff must be AWARE of or have knowledge of the defendant's act. Even if P can avoid the harm (e.g., by ducking) it can still be reasonably reprehensible.

Trespass to Land - Intent

Need only intent to enter the land (or cause physical invasion), not the intent to cause a wrongful trespass. Mistake is NOT a defense.

Trespass to Land - Damages

No proof of damages is required. nominal damages and actual harm.

False Imprisonment - Confinement

No reasonable means of escape.

Duty to Retreat (Ohio)

Ohio follows the Restatement (Second) rule that a person has a duty to retreat, as long as she may do so safely, before she may use defensive deadly force. However, no duty to retreat exists if a person is assaulted within her own home, even if the attacker is a cohabitant. State v. Thomas, 673 N.E.2d 1339 (Ohio 1997). Under the Castle Doctrine, a person may use deadly force within her home if she believes the attacker is going to seriously hurt her. Also, there is no duty to retreat if deadly force is not used.

Defense of Others

One may use REASONABLE FORCE in defense of others upon a REASONABLE BELIEF that the defended party would be entitled to use self defense.

Conversion - Intent

Only need to intend to commit the act that interferes; intent to cause damages is not necessary.

Trespass to Chattels - Intent

Only the intent to do the interfering act, not to intentionally interfer.

Assault - Damages

P can recover 1. Nominal 2. Actual (damages from physical harm), and/or 3. Punitive damages for malicious conduct.

Battery - Damages

P can recover: -nominal (no proof of actual harm is required), -actual, and -punitive damages (for malicious conduct)

False Imprisonment - Damages

P can recover: 1. Actual 2. Nominal, and/or 3. Punitive damages if D acted maliciously.

Defenses to Int. Tort - Express Consent

P expressly consents if she by words or actions, manifests the willingness to submit to D's conduct. Scope: D may not exceed the SCOPE of P's consent.

Assault - Imminence

P must be apprehensive about becoming the victim of an immediate battery, not one in the future.

Defenses to Int. Tort - Implied Consent

P's consent is implied when the P is silent in a situation in which a reasonable person would object to the D's actions. 1. Emergency Situations 2. Injuries arising from athletic contests 3. Mutual consent to combat 4. Capacity - Youth, intoxication, and incompetence may undermine one's consent.

Informed Consent - Rule Statement

Physicians are under a special obligation to explain all material risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure of a physician to secure informed consent from the patient constitutes a breach of the physician's duty toward the patient and is actionable as medical malpractice. Doctors are not under an obligation to disclose when the risk is a commonly known risk, the patient waives or refuses the information, the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian), or disclosure would be too harmful to the patient (e.g., it would upset the patient enough to cause extreme illness, such as a heart attack).

Standard of Care - Physician Informed Consent

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure to comply with this "informed consent" doctrine constitutes a breach of the physician's duty owed to the patient and is actionable as medical malpractice (medical negligence). Doctors are not under an obligation to disclose when the: i) Risk is a commonly known risk; ii) Patient is unconscious; iii) Patient waives or refuses the information; iv) Patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or v) Disclosure would be too harmful to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack). A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any "material risk"; that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

Battery - Harmful or Offensive Contact

Rule: Under tort law, a battery occurs where a person acts intentional causing a contact which the Plaintiff deems harmful or offensive, and such contact actually occurs. 1. Harmful - causes injury, physical impairment, pain, or illness. 2. Offensive Contact - when a person of ordinary sensibilities (reasonable person) would find the contact offensive.

False Imprisonment - Intent

The D must act with the purpose or substantial certainty of confining the P.

IIED - Causation

The P must establish that D's actions were a SUBSTANTIAL FACTOR in creating P's distress.

Int. Tort - Voluntary Act

The act must be voluntary

Self Defense - Third Party Injuries

The actor is not liable for injuries to bystanders that occur while he is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the actor was not negligent with respect to the bystander.

Self Defense - Deadly Force (Ohio)

The following is the criteria necessary to establish self-defense in Ohio: i) The defendant was not at fault in creating the conflict; ii) The defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and his only means of escape from the danger was the use of force; and iii) The defendant did not violate any duty to retreat or avoid the danger. Note: Regarding the second element, the defendant's belief of imminent danger must be reasonable and honest. State v. Robbins, 388 N.E.2d 755 (Ohio 1979).

Private Nuisance - Intent

The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance.

Standard of Care - Physical Characteristics

The reasonableness of the conduct of a D with a physical disability will be determined based upon a reasonably careful person with the same disability.

Standard of Care - Children

The standard of care imposed upon a child is that of a reasonable child of similar AGE, INTELLIGENCE, and EXPERIENCE. EXCEPTION: A child engaged in an ADULT ACTIVITY, such as driving a car, is held to the same standard as an adult. Courts regard children of a particularly young age as incapable of negligent conduct. Under the Third Restatement, children under the age of 5 YEARS are generally incapable of negligent conduct.

Standard of Care - Common Carrier/Innkeeper

Traditional Rule: Owe the highest duty of care and may be liable for SLIGHT NEGLIGENCE. Majority of courts today: - Common carriers - held to higher standard - Innkeepers - liable only for ORDINARY NEG. (not higher standard) - Common carriers and innkeepers have a duty to act affirmatively based on the special relationship with passengers and guests.

Standard of Care - Physicians Standard

Traditionally, physicians were held to the "same or similar" locale rule of custom: did the physician's actions comport with those customarily employed by doctors in the same locale or in similar localities? During the past 40 years, however, many jurisdictions have changed to a national standard: did the physician conform her conduct to the customary practice of the average qualified practitioner? Some jurisdictions now require medical specialists to comply with the national standard while holding general practitioners to the same or similar locale standard.

IIED - Fragile class of persons

a. Children b. Elderly c. Pregnant women (D must know P is pregnant) d. supersensitive adults if the sensitivities are known to D

Negligence Per Se

i) When a criminal or regulatory statute imposes upon any person a specific duty for the protection or benefit of others; ii) If the defendant neglects to perform that duty; iii) He is liable in negligence to anyone in the class of people INTENDED TO BE PROTECTED by the statute; iv) For any accidents or harms of the type the statute was intended to protect against; v) That were proximately caused by the defendant's violation of the statute.