Negligence by suchenfz

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									           Negligence


 “In all civil acts the law doth not so
much regard the intent of the actor, as
   the loss and damage of the party
   suffering.” Lambert v. Bessey (1681)
The Honorable Learned Hand
 New York
 appellate
 court judge
 Famous for
 his Calculus
 for
 Negligence or
 …               “The Hand
                    Test”
              The Hand Test
United States v. Carroll Towing Company,
        159 F.2d 169 (2nd Cir. 1947)
 The Formula for Negligence
                   B < PL
An act is in breach of the duty of care if:
where B is the cost (burden) of taking
precautions, and P is the probability of loss
(L). L is the gravity of loss. The product of P x
L must be a greater amount than B to create
a duty of due care for the defendant.
      Elements of Negligence
1.   Duty
2.   Breach of Duty
3.   Causation
4.   Damages

** All of these elements must be proven or
the plaintiff will not prevail.
                 Duty
The defendant, the accused wrongdoer,
owed a duty of care to the plaintiff, or
injured person.
EVERYONE has a general duty, or legal
obligation, to exercise reasonable care
toward other persons or property.
The Reasonable Person Standard
To help legally determine whether or not a
conduct is negligent, the law has developed
“the reasonable person of ordinary prudence
or carefulness.” This is an idealized person
who acts the way a community expects its
members to act, not exactly as they do act.
          Breach of Duty
The defendant’s conduct breached or
violated that duty
Negligence law is primarily concerned with
compensating victims who are harmed by a
wrongdoer’s action or inaction that violates
this standard of reasonable care.
             Causation
The defendant’s conduct caused the
plaintiff’s harm
The element of causation must be
considered in two separate issues
  Cause in Fact
  Proximate Cause
           Cause in fact
If the harm would not have occurred
without the fact.
Easy to draw the line on a cause in fact.
Provide a scenario with an example of cause
in fact.
        Proximate Cause
There must be a close connection between
the wrongful act and the harm caused.
The harm caused must have been a
foreseeable result of the act or acts.
        FORESEEABLE HARM
               Damages
The plaintiff suffered actual injuries or loss
The basic idea is that the plaintiff should be
restored to his or her pre-injury condition, to
the extent that this can be achieved with
money.
  General damages
  Special damages
          Level of Proof
PREPONDERENCE OF THE EVIDENCE

If a person is able to prove each of the
elements of negligence by a
PREPONDERENCE OF THE EVIDENCE,
that person may be able to recover.
 Defenses to Negligence Suits
Even if the person proves every element of
negligence, the defendant may be able to
raise a valid legal defense.
  One group of legal defenses is based upon the
  plaintiff’s conduct.
    Contributory Negligence
    Comparative Negligence
    Contributory Negligence
As a plaintiff, one may not recover damages
from the defendant if the plaintiff’s own
negligence contributed in any way to the
harm suffered.
This is true even when the damage to the
plaintiff is great and the defendant has been
very negligent.
    Comparative Negligence
Sometimes called Comparative Fault
Louisiana has comparative negligence.
This means dividing the loss according to
the degree to which each person is at fault.
       Another defense:
     Assumption of the Risk
This defense is used when a person
voluntarily encounters a known danger and
decides to accept the risk of that danger.
This defense is also used when a warning is
posted that gives notice of a certain danger.
            Strict Liability
The defendant is liable to the plaintiff
regardless of fault.
  Even if the defendant acted in a reasonable and
  prudent manner and took all of the precautions
  necessary, liability is imposed without proof of
  fault.
  Proof in strict liability lies only in proving
  causation and damages.
   Unreasonably Dangerous
          Activity
Activities are considered unreasonably
dangerous when they involve a risk of harm
that cannot be eliminated even by
reasonable care.
Can you think of an example?
             Examples
A company is hired to demolish an
abandoned building. While demolition may
be necessary, it is dangerous to use
dynamite in a populated area.
This means that the Company doing the
demolition assumes the risk of any
foreseeable harm caused, even if the
company is careful and not negligent.
             Toxic Torts
A concept developed to allow injured
parties to recover damages from industrial
polluters if the injured parties could
establish causation.
                  Animals
The law has traditionally held owners
strictly liable for any harm caused by their
untamed animals.
What about household pets?
  The Dog Bite issue
  Is the first bite really free?
            Dog Liability
Even the first bite by a pet with no violent
history can result in liability if the owner is
negligent….
Some states and localities have leash laws

								
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