Business

V. Negligence;

A. In general:

The elements of a negligence case- the things the plaintiff must prove to recover- are: (1) a breach of duty by the defendant, (2) actual injury suffered by the plaintiff, and (3) actual and proximate causation between the breach and the injury. To win, a plaintiff must also overcome any defenses to negligence liability raised by the defendant. The two traditional negligence defenses are contributory negligence and assumption of risk.

B. Breach of Duty: 1. The Reasonable Person Standard: The basic idea behind

negligence law is that each member of society has a duty to behave so as to avoid unreasonable risks of harm to others. This means that each of us must act like a reasonable person of ordinary prudence in similar circumstances. If a person’s conduct falls below this standard, he has breached a duty. This “reasonable person ” standard is objective in two senses of the term. First, the reasonable person is a hypothetical person with some ideal attributes- not a real human being. Second, the reasonable person standard focuses on behavior rather than on the defendant’s subjective mental state. Finally, the standard is flexible because it lets courts tailor their decisions to the facts of the case.

The most important such factor is the reasonable foreseeability of harm. The idea is that the reasonable person acts so as to avoid reasonably foreseeable risks of harm to others. Suppose that Donald gets into an automobile accident with Peter after Donald falls asleep at the wheel. Because falling asleep at the wheel involves a foreseeable risk

Key Concept #2 Page 3of harm to others, a reasonable person would not behave that way. And because Donald’s conduct fell short of this behavioral standard, he has breached a duty to Peter. However, this probably would not be true if Donald’s falling asleep at the wheel was due to a sudden, severe, and unforeseeable blackout. On the other hand, there probably would be a breach of duty if Donald...