Neglect Torts Chapter 20

scenario Tony, an 18 year old high school student is listening to AC/DC on his I-pod while driving. Tony doesn’t like the track he is listening to, and looks away from the road to find something smoother. He fails to see the car in front of him stop, and crashes into it. The woman in the car suffers a broken leg, and sues Tony to collect for her injuries.

Scenario continued If the woman wants to be compensated for her injuries, will she file a criminal or civil lawsuit? Who is the plaintiff? Who is the defendant ? What can the woman recover? What must she prove?

The Reasonable Person Standard Everyone in society has a duty toward everyone else to act reasonably. “The reasonable prudent person of ordinary prudence and carefulness”. Represents not the average person but does represent the idealized version of the average person Considers how likely certain harm is to occur and how serious the harm would be, and also considers the difficulty to avoid the harm

The reasonable minor The law compares the conduct of minors to minors of similar age, intelligence, and experience. Exception- When minors are engaged in an adult activity, they are held to the adult standard of a reasonable person.

Elements of Negligence Duty Breach Causation Damages

Duty Duty: The defendant owed the plaintiff a duty to act reasonably. A reasonable person would consider (1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness of the harm.

Breach Breach: The defendant’s conduct violated that duty (the defendant did not act reasonably).

Causation Causation: The harm would not have occurred without the defendant’s actions. Requires proof of “Cause in Fact” and that the harm was foreseeable (“Proximate Cause”). Cause in fact- If the harm wouldn’t have occurred without the wrongful act, the act is the “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 foreseeable, and individuals shouldn’t be responsible for harm that was completely unforeseeable

Damages Damages: The plaintiff suffered actual damages (medical costs, lost wages, pain and suffering, etc.).

Defenses to a Negligence Action Contributory Negligence – A plaintiff cannot recover damages from a defendant if the plaintiff’s actions contributed in any way to the harm suffered. Removed in most states by judicial review or state law for being unfair Example: If a warning sign is posted, and the plaintiff sees and ignores it slipping and falling causing injury, then the plaintiff breached the duty to act reasonably, and the breach of duty becomes the cause of the injury. duty, breach, and cause are the fault of the plaintiff and not the defendant, and therefore the plaintiff can’t receive damages. Comparative negligence- dividing the loss according to the degree to which each person is at fault. Example: Defendant 80%, Plaintiff 20% If the plaintiff is found to be more than 50% at fault, the plaintiff in many states will receive no damages, and the defendant can file a counterclaim suing the plaintiff. Assumption of risk – a plaintiff who formally accepts a particular risk of harm may be prevented from recovering for related negligent acts by a defendant.

Compared to Intentional Torts Intentional torts occur where a defendant: Intended the physical consequences of his or her action; and Knew, or should have known, that the intended consequences of his or her action were substantially certain to occur.