Something: Tort Law and Property Damage Plaintiff Essay

Submitted By fuckingjohn
Words: 837
Pages: 4

Negligence
The prima facie case for negligence requires:
Duty is owed to the plaintiff by the defendant
Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

Duty
In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. Two issues arise in terms of duty of reasonable care:
Foreseeability
Standard of Care
Foreseeability
The duty of care must be toward a foreseeable plaintiff.
Test for foreseeability: A plaintiff is foreseeable if he was in the zone of danger created by the defendant.
Standard of Care
The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances.
Factors to consider that may or may not modify the circumstances include:

Physical characteristics
A person who has great physical strength will be judged according to an ordinary person of great physical strength. Likewise, a weak person will be judged according to a standard of what an ordinary weak person would do.

Average Mental Ability
Everyone is judged as being of average mental ability and no accommodation is made for being extraordinarily intelligent.

Same knowledge as an average member of community
Presumed to have common knowledge about known dangers in the community.

Professionals
Professionals are judged according to other professionals in same community.
Children

Children are judged according to children of same age, education, intelligence and experience.

Breach of the Duty
In order to be held liable for negligence the action by plaintiff must fall below standard of care.
The primary issue is where to draw the line as to the standard of care. Factors to consider in drawing the line are:

1. Custom in the community

2. Violation of statute (negligence per se)
Violating a statute creates a rebuttable presumption of negligence. Defendant is presumed to be liable for negligence if he breaks a law and cause harm to the plaintiff but he can rebut that presumption by showing that there was a custom to break the law.

3. Res Ipsa Loquitur
Latin for "The thing speaks for itself." This doctrine draws an inference of liability because the thing that caused the accident was in the exclusive control of the defendant. In other words, it couldn't be anyone but the defendant who caused the harm.

Causation
The defendant caused the harm to occur. There are two types of causation:
Actual Causation and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur? There are two different tests you can use.
"But for" Test: Ask yourself the question: "But for the defendant's actions, would the plaintiff's harm have occurred?"
Substantial Factor Test: If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable.

Proximate Causation: This sometimes difficult to grasp concept is actually very simple on most exams. Be sure to check with your professor but if in doubt, use the following generally accepted test:

Foreseeability Test: If harm is unforeseeable, then defendant is not held liable by reason that there is no proximate causation.

Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge Cardoza. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and…