•
D owed P a Legal Duty
•
Breach of Duty
•
Actual Damages
•
Factual Cause
•
Proximate Cause

The duty owed by all people generally – the standard of care they owe – is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others. . . .
Dobbs

Low-Risk
Scenario
High-Risk
Scenario
Beach Bum
Reasonable and
Prudent Person
Worry Wart

[Negligence is] the absence of ordinary care . . . .
Ordinary care is the care a reasonably prudent person would use under the circumstances presented in this case. . . . What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by law must be in keeping with the degree of danger involved.

The duty owed by all people generally – the standard of care they owe – is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others. . . .
Dobbs

Wisest
Unwise
Option 1 Option 2 Option 3

Posas
D following too closely
P stops short to avoid hitting pedestrian
D rear-ends P

Posas
A person confronted with a sudden emergency which he does not create, who acts according to his best judgment or, because of insufficient time to form a judgment fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances.

Wisest
Emergency Circumstances
Reasonable Actions
JURY WRONGLY
THINKS EXCUSED
Unreasonable Actions
Unwise
Option 1 Option 2 Option 3

Posas
JURY WRONGLY FAILS
TO CONSIDER EARLIER
NEGLIGENCE
D following too closely
P stops short to avoid hitting pedestrian
D rear-ends P

Wisest
Emergency Circumstances
Reasonable and Prudent Person
Reasonable Actions Unreasonable Actions
Unwise
Option 1 Option 2 Option 3

Visually-impaired D drives car
Fails to see tire in road
Hits tire, which then strikes P

1) When allocating a loss between 2 innocent parties, pick the one causing the loss
2) Rule gives caregivers incentives to prevent harm and restrain the mentally disabled
3) Removes inducement for defendants to fake a mental disability
4) Avoids administrative problems w/ courts/juries assessing actor’s mental disability
5) Fair to force persons w/ mental disabilities to pay for the damages they do if they “live in world” given the likelihood they will engage in substandard conduct
6) Reflects public policy preference to treat mentally disabled individuals the same as the non-mentally disabled

•
D owed P a Legal Duty
•
Not met if under state law, young children deemed incapable of negligence
•
Breach of Duty
•
Actual Damages
•
Factual Cause
•
Proximate Cause

•
D owed P a Legal Duty
•
Duty = whatever the statute says D must or must not do (vs. ordinary care)
•
Breach of Duty
•
Violation of statute establishes breach of duty
•
Question for jury = whether D violated statute (vs. what would reasonable and prudent person have done)
•
Actual Damages
•
Factual Cause
•
Proximate Cause

•
D owed P a Legal Duty
•
Duty = ordinary care
•
Breach of Duty
•
Question for jury = what would reasonable and prudent person have done
–
Violation of statute is evidence D did not exercise ordinary care
•
Actual Damages
•
Factual Cause
•
Proximate Cause

Per Se
1. The statute/regulation clearly defines required standard of conduct;
2. The statute/regulation is intended to prevent type of harm D caused;
3. P member of class of persons statute/regulation designed to protect;
4. Violation of statute/regulation is a proximate cause of injury.

Zouston’s local ordinance provides that the city dog warden must impound any dog that bites a human being. The warden receives a report that Sparky, a feisty pit bull, has bitten a neighbor. Sparky’s owners convince the dog warden not to impound Sparky, promising that he will never bite someone again. Later that day
Sparky takes a nap in Mrs. Jones’s garden, ruining her prize-winning petunias. Mrs. Jones sues the dog warden for negligence. Will the court apply the negligence per se doctrine?

Per Se
1. The statute/regulation clearly defines required standard of conduct;
2. The statute/regulation is intended to prevent type of harm D caused;
3. P member of class of persons statute/regulation designed to protect;
4. Violation of statute/regulation is a proximate cause of injury.

Per Se
Restatement (Second) Restatement (Third)
Incapacity
Neither know/should know occasion for compliance
Reasonable given actor’s childhood or physical disability/incapacitation
Neither knows/should know of the factual circumstances that render statute applicable
Same Unable to comply after reasonable diligence
Emergency not of actor’s own making
Compliance imposes greater risk to self or others
Same
Noncompliance due to confusing way requirements presented to public

State law provides that pedestrians walking on a roadway should walk on the left side so as to permit all vehicles passing them in either direction to pass on their right. After observing heavy traffic travelling in the eastward direction and very few cars travelling in the westward direction, P decides to walk on the roadway in the westward direction, which is the right side of the road. P is struck by D, a drunk driver who was travelling westward. D asserts that P was contributorily negligent, arguing that P was negligent per se because he violated state law. Which of the following is most correct?
A. P is not negligent per se if few pedestrians comply with the law
B. P is not negligent per se because his action is an excused violation of the statute
C. P is not negligent per se if the jury concludes he acted as a reasonable and prudent person would act under similar circumstances
D. P is negligent per se because he cannot assert any possible justification for his actions