Elements in order to establish a prima facie case of
NEGLIGENCE
(1) DUTY – a legally recognized relationship between the parties
(2) BREACH OF DUTY – failure to meet the standard of care
(3) CAUSE-IN-FACT -
 ’s harm must have the required nexus to the
 ’s breach of duty
(4) PROXIMATE CAUSE – foreseeability; there are no policy reasons to relieve the defendant of liability
(5) COMPENSABLE DAMAGES -

suffered a cognizable injury
Standard of Care
The level of conduct demanded of a person so as to avoid liability for negligence.
The required level of expected conduct.
Failure to meet standard is characterized as breach of duty .
Reasonable Person
Person of Ordinary Prudence
Reasonable and Prudent Person
A Reasonable Man of Ordinary Prudence
Flexibility in the Reasonable Person Standard
OBJECTIVE STANDARD – Knowledge, Experience, and Perception
Ordinary, Prudent, Reasonable Person Under the
Circumstances.
Does not excuse failure to conform because of clumsiness, forgetfulness, poor judgment, or mental impairment.
Negligence law generally evaluates
 ’s conduct, not  ’s state of mind.
(1) Emergency – standard of a reasonable person under those emergency circumstances [note 9, pages 90-91]
(2) Physical Conditions – a reasonable person with the same condition would have behaved like the defendant [ Roberts v. State of Louisiana ]
(3) Mental Conditions – irrelevant for purposes of negligence liability [ Vaughan v. Menlove ]
(4) Superior Abilities, Skill or Knowledge – will not be taken into account (except Professionals) [ Public Service Co. of New
Hampshire v. Elliot ]
(5) Youth
– hold children to standard of like age, experience, and intelligence under circumstances except where child engage in an inherently dangerous activity [ Charbonneau v. Macrury ]
Three elements in judging a Reasonably Prudent
Person
(1) same age as

(2) same experience or stage of development
(3) same intelligence
Charbonneau v. Macrury

Learned Hand’s
Negligence Formula
Role of Custom
B<PL = negligence
B>PL = no negligence
P = the likelihood of harm
L = likely harm flowing from the injury-causing event when it occurs
B = coasts associated with avoiding the harm, alternatives and their feasibility, the inconvenience to those involved and the extent to which society values the relevant activity
 well-defined and consistent way of performing a certain activity, often among a particular trade or industry
 custom evidence does not itself establish breach of duty – existence of a custom suggests some degree of probability of the harm
 evidence of
 ’s compliance with custom does not establish
 ’s due care, can still find “customary negligence” on  ’s part if entire custom itself is unreasonable [ T.J. Hooper ]
Types of Due Care
Statutory Purpose Rule
“Negligence Per Se”
Negligence Per Se
(1) flexible standard
(2) custom
(3) statute
Violation of a statute that makes certain conduct criminal may also give rise to civil liability in negligence
(1) determine if statute is a legislative pronouncement appropriate to set the standard of care in a negligence case [ Martin v. Herzog ]
(2) whether statute designed to protest against the type of harm suffered by

[ Gorris v. Scott ]
(3) whether class of persons designed to be protected by statute includes

[ Pottis v. Fidelity Fruit & Procduce
Co.
]
(4) rebuttable presumption [ Tedla v. Ellman ]
Negligence as a matter of law.
Breach of the duty is not a jury question.
Usually arises from a statutory violation.

Acceptable Excuses of a statutory violation
(1) the actor has some incapacity rendering the violation reasonable
(2) compliance would involve greater danger than violation
(3) a sudden emergency that is not of the actor’s making
(4) the actor neither knows nor should know of the occasion for diligence [unawareness]
(5) after reasonable efforts to comply , the party is unable to do so [inability to comply after due diligence]
In order to prove negligence [in a flexible standard case],

must show:
(1) what the

did
(2) how dangerous it was [relates to PL]
(3)

had knowledge of the danger or reasonable person’s knowledge [relates to PL]
(4) existence of feasible alternatives [relates to B]
(5)
 ’s knowledge of alternatives or the reasonable prudent person’s knowledge [relates to B]
Forms of Evidence

can use in establishing negligence
[proving flexible standard]
(1) direct – evidence from personal knowledge or observation (i.e. videotape); no need to draw any inferences
(2) circumstantial – proof that requires the drawing of an inference from other facts to have probative value [ Winterowd v. Christensen, Yates v.
Chappell ]
(3) res ipsa loquitur
Res Ipsa Loquitur
[ Colmenares Vivas v. Sun Alliance Insurance Company ]
A doctrine of circumstantial evidence of negligence. It permits the fact-finder to infer negligence, where there is no direct evidence of negligence.
Requirements of res ipsa loquitur: a harm may be inferred to have been caused by

when:
(1) accident be of a kind which does not occur in the absence of someone’s negligence
(2) caused by an agency or instrumentality within the exclusive control of

(3) not be due to any voluntary action of part of

Effects of Res Ipsa Loquitur o it raises a presumption of negligence which requires the jury to find negligence if

does not produce evidence sufficient to rebut the presumption; or o it not only raises such a presumption but also shifts the ultimate burden of proof to the

and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence

Duty of Due Care
The duty of behaving towards the

with the degree of care that a reasonable person would exercise in like circumstances
[ Gould v. Slater Woolen Company – no duty,

unaware of danger; cannot foresee possible risks and take precautions]
[ Grace & Co. v. City of Los Angeles ]