A little Bit of Synthesis 1. Negligence is the failure to avoid foreseeable, unreasonable risks of harm to others…wrongful because D was not reasonably careful (versus intended that result) 2. Prima facie elements for liability  Duty, Breach, Causation & Damages…which is to say D’s negligence (breach of duty by creating unreasonable risk) must cause injury for P to recover

First group of cases focused on defining “negligent risk” that is, what makes a risk unreasonable….which is to say: what makes a D’s conduct or omission a breach of duty Risk must be foreseeable….that is, sufficiently likely to happen and serious enough that a reasonable person would recognize it And, in general, a foreseeable risk is unreasonable if MR>UR Put another way: it is unreasonable because a Reasonably Prudent Person would have acted differently  thus, negligent (unreasonable) risk can be expressed in a variety of ways…and measured or established in different ways: MR > UR = RISK IS UNREASONABLE ONE…A NEGLIGENT ONE: useful for more complicated circumstances with competing benefits & burdens WHICH IS TO SAY RPP….(OR DOCTOR, ETC) WOULD AVOID IT…TAKE CARE TO GUARD AGAINST IT, ETC: a general Standard of Care What duty (reasonable care) requires may also BE SHOWN BY BY CUSTOMARY PRACTICES BY D’s VIOLATION OF STATUTE Expert testimony if o/s juror common knowledge (And proven BY direct or CIRCUMSTANTIAL EVIDENCE Including RES IPSA inference of negligence)

Rule Relationships RELATIONSHIP between RPP -- UR > MR-- unreasonable risk –custom—statutes, etc And prima facie case?  duty….breach? DUTY is…..obligation to to act in accord with standard of care = “due care under circumstances” …which is same as “RPP”…which is the same as avoiding unreasonable (MR>UR) foreseeable risks what does “due care” require?→ one could say: to not speed, to pick up golf clubs in the yard, insulate wires, clean up banana peels…..one could say this BUT more accurately DUTY is to meet the Standard of Conduct…not specific conduct That is, to act with reasonable care like a RPR under the circumstances (to avoid unreasonable, foreseeable risk of harm to others reasonable care will vary with the circumstances! THUS, DUTY is almost always the same  act like a RPP…with DUE (reasonable) CARE to avoid unreasonable risks Rules on the RPP standard (physical disabilities, children, mental, professionals) all relate to defining that duty ….the standard of acting like a RPP

while specific acts or omissions establish ∆’s BREACH under circumstances…the failure to meet the standard (the measurement) of care breach…because a RPP would not leave a banana peel on the floor …because doing so creates a foreseeable, unreasonable risk of harm to others

role of custom?  what others do is evidence about what duty (due care) requires under the circumstances…what RPP in that area do (and feasibility)…that is, custom addresses breach by providing evidence about what similarly situated RPP do Role of statutory violations? legislative pronouncement about what duty (due care) requires under the circumstances “negligence per se” rules determine if it is appropriate to use the statutory violation for this purpose (and, depending on formulation of rule, may include the causation element) Role of circumstantial evidence & Res Ipsa? allows jury to draw the inference that THIS D has BREACHED HIS DUTY because he was in control and normally the event does not occur without carelessness Rules on res ipsa ensure that it is reasonable and fair to allow the jury to draw the inference if it so chooses (that is, believes those are the facts)

Duty…breach…what comes next? General Rule: Duty is to act like RPP to avoid unreasonable risk but limitations and exceptions exist (e.g., J&S case saw that common law does not impose any duty to prevent harms caused by other people) Causation breach must cause actual injury (cause in fact) but causation is also used to limit liability…that is, determine when a negligent D is legally responsible for consequences that he causes