TORTS - Negligence: Standard of care: RPP, Custom, Negligence per se, special D's, Bailments

Defenses to negligence per se - reasonable care

It is a defense that D exercised reasonable care in attempting to comply with the statute.

Defenses to negligence per se

-Compliance impossible or more dangerous than non compliance -Violation reasonable under the circumstances -Statutory vagueness or ambiguity

Elements of negligence per se

1) Statute imposes a penalty for violating a duty 2) D violates by failing to perform the duty 3) P is in class intended to be protected 4) P suffers harm intended to be protected against 5) P's injuries proximately caused by D's violation of statute

Standards of care for classes of D's - Bailees duty

1. Gratuitous bailee- liable only if he has been grossly negligent. 2. Bailee for hire/ sole benefit from the bailment- must exercise extraordinary care (slight negligence standard) for the bailor's property. 3. Bailment for mutual benefit- Bailee must take reasonable care of the bailed property.

Mentally disabled person

A mentally disabled person is held to the standard of reasonably prudent person

Physical disability

A person with a physical disability is held to the standard of a reasonably prudent person with a physical disability

Person with special skills or ability

A person with special skills or ability is held to the standard of a reasonably prudent person with special skills or ability

Custom - Professionals

A professional (e.g., doctor, lawyer, or electrician) is expected show same skill, knowledge, and care as another practitioner in the community. Specialist may be held to a higher standard.

Intoxicated person

An intoxicated person is held to the standard of reasonably prudent person, unless their intoxication was involuntary

If D complies with statute

Compliance may pre-empt tort actions, but does not prove absence of negligence

Defenses to negligence per se - Greater risk of harm

D may avoid liability if compliance w would make a greater risk of harm to D or others than noncompliance

Defenses to negligence per se - Incapacity

D may avoid liability if violation is reasonable due to physical disability of incapacity, or if the D is a child

Custom - within an industry

Evidence of a custom in a community or an industry is admissible to establish the proper standard of care but not conclusive. The entire community or industry may be negligent

Reasonably Prudent person

Generally, the standard of care is that of a reasonably prudent person under the circumstances D 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

Standards of care for classes of D's - Bailor's duty (to gratuitous bailees and bailee's for hire)

Gratuitous bailee: Bailor must inform of KNOWN dangerous defects in personal property. Bailee for hire: Bailor must inform a defects that are KNOWN or SHOULD HAVE BEEN KNOWN by the bailor

Standards of care for classes of D's - Common carriers and innkeepers

Higher duty of care than RPP - can be liable for "slight negligence" (Majority rule); but inn keeper only liable for ordinary negligence. Same duty of care for common carriers and innkeepers, except they have a duty to act based on special relationship w/customers (RST 3)

Defenses to negligence per se -Reasonable ignorance

If statute 1. imposes an obligation only under certain factual circumstances that are not usually present, and 2. D is not aware that these circumstances are present 3. D proves that his ignorance was reasonable

Defenses to negligence per se -Vagueness

If statute at issue is extremely vague or ambiguous, then the defendant's violation is excused.

Negligence per se (criminal statute imposes duty)

Majority view - violating statute means duty and breach are satisfied. Minority view- Violating statute is merely evidence of negligence (rebuttable presumption as to duty and breach)

Standards of care for classes of D's - drivers

Majority: drivers owe ordinary care to guests as well as their passengers (paying gusts) Minority: "guest statute" impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car.

Custom - Physicians

Many jurisdictions have changed to national standard (from local)

Custom - Physicians - Informed consent

Physicians have a duty to disclose the risks of a medical procedure to a patient before a patient gives consent to treatment. BUT, no duty to disclose if 1. Risk is commonly known 2. Patient is incapable of giving consent (i.e. unconscious) 3. Patient waives 4. Patient incompetent 5. Disclosure would be detrimental to the patient

Custom - safety codes

Safety codes promulgated by industries, associations, and government bodies for guidance are admissible to prove custom.

Standards of care for classes of D's - EMERGENCIES

Standard of care in an emergency is that of a reasonable person in the same situation. Emergency is part of the situate. Less is expected of the reasonably prudent person forced to act in an emergency. (if D''s conduct did not cause the emergency)

Infants

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Child engaged in hi risk activity (i.e. driving) is held to reasonably prudent person Child under 5 is incapable of acting negligently

Defenses to negligence per se - Violation by a plaintiff

Violation of a statute by P may constitute contributory negligence per se. The same requirements apply.

Bailment

When a bailee temporarily takes possession of another's (the bailor's) personal property (i.e. driver leaves car with valet) The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment.