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COMM 341: C/A Tort of negligence

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Next quiz's questions: These will ask WHO is at fault. (Both pedestrian & drive in first; surgeon in second)

New vocab - At fault: Someone is at fault if there is either Intent, Recklessness, or Negligence plus a cause plus a injury.

  • Facet is Under State law
  • Totally dischargable under chap 7 bankruptcy
  • Partially dischargable under chap 13

Facet I


1. Negligent act or omission

  • The failure to use reasonable care as measured by the appropiate standard of care

1.a. Ordinary adult standard of care

  • "Care of a reasonably prudent person under the same or simlar circumstances"
    • This turns into "what would I do under the same cirumstances"
    • This means all it really is - a community standard.
      • "Where the jury is coming from"
  • Negligent entrustment
    • You hand something over to someone in a way that a reasonable person wouldn't do.
    • In real life, it's usually a car.

1.b. statutory standard of care

  • Since reasonable people do not comit crimes, it follows that:
    • It is automatically a negligent act to violate a criminal statute.
      • This is a ONE WAY "RACHET" rule

1.c. professional standard of care

  • Care of a reasonably prudent member of the profession under the same or similar circumstances
    • These include: Medicine, law, accounting, architecture, proffessional engineering
  • So how does the jury understand what a reasonably prudent person would do?
    • It gets to the jury through expert exidence in two ways:
      • Expert testimony
      • Or (in ACCOUNTING) written standards (GAAP or GAAS)

2. Injury

  • Basic rule: no harm, no foul
    • Just because there is a negligent act, doesn't mean there's negligence
    • Someone HAS to get hurt, or it doesn't count

3. Legal causation

  • The injury must be CAUSED by the injury
  • The cause must be "PROXIMATE" to the injury
    • There must be a short link between the injury and the cause

=Facet II= ^ If this is true, then plantiff can not win case

1. Assumption of risk

  • The plaintiff had knowledge of risk
  • The plaintiff voluntarily undertook that risk.

2. Exculpatory agreement

  • An agreement not to sue for tort
    • These can be releases, waivers, permission slips, just a DEAL that you won't sue in a tort case.
    • Note, are they valid:
      • - For Pursonal Injury, Exculpatory injuries are NOT VALID
      • - For property injury, they ARE VALID
      • - For financial injury, they ARE VALID

3.a. Contributory negligence (VIRGINIA & MARYLAND)

  • Pliantiff was also negligent, and pliantiff's negligence was also a legal cause.

3.b. Comparative negligence (OTHER STATES)

  • Same two elements as 3.a
    • Pliantiff was also negligent, and pliantiff's negligence was also a legal cause.
  • But its decided with a SPECIAL VERDICT

Which one is it? Well the rule depends on the states where the injury was caused

=Facet III= ^ you already know plaintiff will win to get to Facet three, the only question is how much with be awarded?

Compensatory damages

Punative damages

Note! Since there are NO punative damages with a level of fault of negligence - there is a "special showing" where the jury tries to find recklessness.

Therefore the jury MUST FIND recklessness (and damages) to award punative damages

Why DWI is the worst

  • Automatically a reckless act
  • Non dischargable under bankrputcy
  • 4 others?

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This page was last modified on 8 November 2005, at 20:39.
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