Negligence
Chapter 8
Objectives
• Define and identify elements of negligence.
• Explain concepts:
– Duty
– Standard of care
– Breach
– Damages and proximate cause
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Objectives
• Explain what the standard of care is for
professionals and those with specialized training.
• Identify types of evidence that can be used to
establish the standard of care for a professional.
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Objectives
• Explain defenses to negligence:
– Assumption of risk
– Contributory negligence
– Comparative negligence
– Last clear chance doctrine
– Rescue doctrine
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Objectives
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Explain Fireman’s Rule.
Define gross negligence and recklessness.
Explain joint and several liability.
Identify common types of activities for which strict
liability is imposed.
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Negligence
• Many definitions exist
• Our definition
– Failure to exercise the care that the reasonably
prudent person would have exercised under the
circumstances, which causes damages to another
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Elements of Negligence
• Three elements
1. Act/omission
2. Causing damages to another
3. Breach of the standard of care
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Act
• Act
– Doing an affirmative act
• Driving a car
• Performing CPR
• Extinguishing a fire
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Omission
• Omission
– Failure to do something you are legally required
to do
– Concept of legal duty
• At common law
– No duty to act even if someone is in trouble
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Damages
• Damages
– Personal injury, property damage, or money lost
• Damages do not include:
– Hurt feelings or being wronged in principle
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Causation
• Damages must be caused by defendant’s
negligence
– Proximate cause = legal cause
– Requires more than “but for” cause
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Breach of the Standard of Care
• Act or omission must have failed to live up to the
reasonably prudent person standard
• Standard of care
• Who or what is the reasonably prudent person?
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Reasonably Prudent Person
• An imaginary common person who is very
careful
– "When a person, acting in a given set of
circumstances, fails to exercise that degree of care
for the safety of another which a reasonably prudent
person would have exercised in the same or similar
circumstances, said person is said to be negligent.“
Rhode Island Supreme Court
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Reasonably Prudent Person
• Standard works for normal daily activities that all
people are familiar with
– Driving a car
– Cooking a meal
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Reasonably Prudent Professional
• Reasonably prudent professional standard
– To evaluate those with special knowledge or
expertise
– Standard of care expected of someone with
professional qualifications
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Reasonably Prudent Professional
• Standard of care is a question of fact for the jury
• Evidence of standard of care comes from
– Expert witnesses
– Laws and regulations
– Industrywide standards
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Fire Service Negligence
Cases
• Kenavan v. New York
• McGuckin v. Chicago
• Harry Stroller v. City of Lowell
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Emergency Medical Care
and Negligence
• Consent to treat, battery, and negligence
• Patient abandonment
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Defenses to Negligence
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Contributory negligence
Assumption of the risk
Comparative negligence
Last clear chance
Rescue doctrine
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Fireman’s Rule
• An exception to the rescue doctrine
• Bars suits by firefighters and police officers for
injuries sustained at emergencies
– States have differing applications
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Fireman’s Rule Modern
Limitations
• Injured firefighters may sue if:
– Defendant intentionally set fire
– Owner or tenant was reckless or grossly negligent
in starting fire
– Occupant failed to warn FFs of a dangerous
condition
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Strict Liability
• Liability without regard to fault
• Unreasonably dangerous activities
• Most common
– Explosives
– Wild and dangerous animals
– Nuclear reactors
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Strict Liability
• Even intentional conduct of others will not stop
liability
• Economics
– Damages or risk of harm must be incorporated into
the price as a cost of doing business
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Strict Liability
• Cost can be spread among users, as opposed to
being borne solely by victims
• Further incentive for involved parties to exercise
utmost care
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Respondeat Superior
• Employer is liable for acts of employee committed
within scope of employment
• Respondeat superior does not require negligence by
employer
• Employee wrongdoing must be within scope of
employment
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Joint Liability
• If the negligence of two or more parties causes
damages to a plaintiff
• Each is liable to plaintiff for 100 percent of damages
– Defendants can later recover from each other a
pro-rata share based upon fault
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Summary
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Definition of negligence
Defenses to negligence
Fireman’s Rule
Gross negligence and recklessness
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Summary
• Strict liability
• Respondeat superior
• Joint and several liability
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