Chapter 7 business law "Negligence"

reasonable person

(1) attentive, (2) aware of his or her environs, (3) careful, (4) conscientious, (5) even tempered, and (6) honest.

No Duty to Rescue

A person failing to aid a stranger in peril is not negligent as a matter of tort law (although most people would impose an ethical duty on him to render aid).

Wild Animal

A person who keeps a wild animal is strictly liable for any harm the animal inflicts; whereas, the owner of a domestic animal is only strictly liable if she knew or should have known that the animal was dangerous or had the propensity to harm others.

Proximate Cause

Exists when the connection between an act and an injury is direct enough to impose liability. A common and critical element of proximate cause is foreseeability - if the consequence of the act or omission or the victim who is harmed by the act or omission is unforeseeable, no proximate cause exists.

Negligence

Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances. Negligence requires no intent on the part of the tortfeasor, nor does it require that the tortfeasor know or believe the consequences that his act or omission may cause. Negligence merely requires that the tortfeasor's act or omission create a risk of the consequences complained of by the injured party.

The "Danger Invites Rescue" Doctrine

In cases where an individual takes foreseeable action to avoid harm or to rescue another from harm, any injury her action causes will be attributable to the original wrongdoer whose fault or negligence caused her to take the defensive action.

"Dram Shop" Liability

Many jurisdictions hold that a business, and in some jurisdictions an individual, that served alcoholic beverages to a person after he or she arrived intoxicated or became intoxicated is liable for any injuries caused by the intoxicated patron or guest.

Superseding Cause

The connection between the wrongful act or omission and the injury suffered may be broken by the occurrence of another act or omission, not caused by the alleged tortfeasor nor subject to the alleged tortfeasor's control, which supersedes the original wrongful act or omission as the cause of plaintiff's injury or loss.

Reasonable Care

The degree of care expected of a hypothetical "reasonable person"; not necessarily how a reasonable person would act, rather how a reasonable person should act.

Duty of Care

The duty of all persons to exercise reasonable care in their dealings with others

Causation in Fact

An act or omission without which the plaintiff's injury would not have occurred.

Professionals' Duties

If an individual has knowledge, skill, or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a "reasonable professional" can result in the professional being subject to liability for professional malpractice.

Landowners' Duties

Landowners are expected to exercise reasonable care to protect from harm those persons coming onto their property - even trespassers.

Strict Liability

Liability regardless of fault. Among others, defendants whose activities are abnormally dangerous or involve dangerous animals are strictly liable for any harm caused.

"Good Samaritan" Statutes

Many states have passed legislation preventing those who are aided voluntarily from then suing the person who rendered the assistance.

Comparative Negligence

More popular today than contributory negligence, a comparative negligence scheme permits plaintiff to recover only for the percentage of his or her injury or loss that was not caused by plaintiff's own negligence.

Contributory Negligence

No matter how insignificant the plaintiff's own negligence is when compared to that of the defendant, in a minority of jurisdictions any negligence on the part of the plaintiff that contributed in any way to the injury of which plaintiff complains will bar the plaintiff from recovering damages from defendant.

Business Invitees

Retailers and other business that explicitly or implicitly invite persons to come onto their premises are expected to exercise reasonable care toward these business invitees.

Abnormally Dangerous Activities

Some activities are so inherently dangerous that they give rise to liability without regard to fault because the activity (1) involves serious potential harm to persons or property, (2) involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable care, or (3) is not commonly performed in the community or under the circumstances.

"50% Caps"

Some jurisdictions further refuse to permit a negligent plaintiff from recovering any damages if the plaintiff is responsible for more than 50% of his or her own injury or loss.

Obvious Risks

Some risks are so obvious that the owner need not warn even invitees.

Actionable negligence

requires that: (1) the tortfeasor owed the plaintiff a duty of care, (2) which the tortfeasor breached, (3) actually causing the plaintiff (4) a legally recognizable injury. The purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.

Res Ipsa Loquitur

A court may infer that negligence caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence. Negligent tortfeasors typically must merely compensate the victim; however, in some cases, a court will also award punitive damages

Assumption of Risk

A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor. Risk may be assumed by express agreement or be implied by the plaintiff's knowledge and conduct. Plaintiffs do not assume risks other than those inherent in the situation. Assumption of risk will not arise in emergencies. Assumption of risk will not arise when the plaintiff is a member of a statutorily-protected class of persons.

Negligence Per Se

An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party. The plaintiff must prove that: (1) the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected, and of whom it is expected, (2) the plaintiff is in the class of persons intended to be protected by the statute or ordinance, and (3) the statute or ordinance was intended to prevent the type of injury that the plaintiff suffered as a result of the defendant's wrongful act.