1. Defined
1.1. As conduct
1.1.1. The defendant creates or fails to avoid unreasonable reisks of forseeable harm to others.
1.1.1.1. Bad state of mind is not required nor sufficient to show negligence.
2. Requires
2.1. Duty
2.2. Breach
2.3. Causation
2.4. Damages
2.4.1. Plaintiff must show that there was an actual harm suffered.
3. Controls suits for injuries suffered by patients at the hands of doctors, of tenants by landlords and of customers by businesses
4. Privileges/ Defenses
4.1. Assumption of Risk
4.1.1. Express
4.1.1.1. Agreements that relieve another party of liability for their negligence are valid unless against public policy
4.1.1.1.1. Unequal Barganing not upheld
4.1.1.1.2. Agreements in matter of public interest (essential services)
4.1.2. Implied
4.1.2.1. Plaintiff must have actual knowledge of the particular risk
4.1.2.2. Plaintiff must appreciate the magnitude of the risk
4.1.2.3. AND
4.1.2.4. Plaintiff must have voluntarily encountered the risk.
4.2. Comparative Negligence
4.2.1. Two types
4.2.1.1. Pure
4.2.1.1.1. Plaintiff always recovers something
4.2.1.2. Modified
4.2.1.2.1. Plaintiff is barred from recovery only if p's fault reaches a specified breaking point
4.3. Contributory Negligence
4.3.1. Only in four states
4.3.1.1. Maryland, Virginia, Alabama, ____& District of Columbia
4.3.2. Plaintiff must be negligent, and the negligence contributed to the harm.
4.3.2.1. if shown Plaintiff cannot recover Unless they can show an ameilerating defense.
4.3.2.1.1. Ameliorating Defenses
5. Some Types of Claims
5.1. Cna be negligently shot, burned. drowned or posioned
5.2. Suffering or death by
5.2.1. Negligently transmitting a disease
5.2.2. negligently inflicted genetic harms.
6. Characteristics
6.1. Negligence is a type of fault
6.1.1. a pseron who negligently causes personal injury or property damage is liable for the tort
6.1.1.1. typically for failure to use reasonable care under the circumstances
6.2. Specific conduct is negligent
6.2.1. Most general activities aren't negligent because risks are outweighed by the value of the action.
6.3. Negligent Communication
6.3.1. giving inaccurate information to one impreiled by acting upon it OR
6.3.2. May give accurate information to one who will use the information dangerously
6.4. Characterized by the following points
6.4.1. Open ended claims
6.4.1.1. any given conduct is negligent.
6.4.1.1.1. Plaintiff argues the defendant should not have indulged in the conduct or should have carried it out more safely.
6.4.2. Jury Roles
6.4.2.1. Jury is limited by knowledge
6.4.2.1.1. Judges are a highly significant force and subject to lower restrictions
6.4.3. Actual Harm Required
6.4.3.1. Plaintiff must be harmed
6.4.3.1.1. Nominal damages are not awarded
6.4.3.2. the harm cannot be doubted
6.4.4. Pre-occupation with bodily harm and property damages
6.4.4.1. physical injury to persons and tangible property is focus of negligence law
6.4.5. Damages when a claim is established
6.4.5.1. If a valid claim
6.4.5.1.1. damages can be awarded for intangible things ( emotional harm, sense of loss of life)
6.4.5.1.2. Plaintiffs can recover for all foreseeable damages upon established claim
7. Specific situations of Negligence
7.1. Negligence per Se
7.1.1. Should a statute set the standard? (Set by the judge)
7.1.1.1. Is the party seeking to prove the violation of the statute a member of the class the statute is designed to protect
7.1.1.1.1. Is the harm that occured on the at is intended to be preventing
7.1.1.1.2. No, Negligence per Se Does not apply
7.1.2. If the standard is set by the statute, and violated, Defendant is in breach
7.1.3. The case then moves to Causation & Damages (under traditional negligence)
7.1.4. exscuses to violate
7.1.4.1. Violation is reasonable Because of Defendant's incapacity
7.1.4.2. Defendant neither knows nor should know of the occasion for compliance
7.1.4.3. defendant is unable to comply
7.1.4.4. Defendant is confronted by an emergency they didn't creat
7.1.4.5. Compliance would involve a greater risk of harm.
7.2. Res Ipsa Loquitor
7.2.1. Defined
7.2.2. Elements
7.2.2.1. Accident woulnd't have occured without negligence
7.2.2.2. Negligence at isue was within the scope of duty owed to the plaintiff
7.2.2.3. Accident causing instrumentality was in the control or the defendant or all 3rd parties have been eliminated as a cause of the negligence
7.2.3. Judge dtermines if the Inference is allowed
7.2.3.1. Jury decides to used.
7.2.4. Effect
7.2.4.1. Majority Causes an inference of negligence that the jury may draw or not
7.2.4.2. Raises a presumption of negligence which requires the jury to find negligence if the Defendant does not produce evidence sufficient to rebut
7.2.4.3. Raises a presumption and shits the ultimate burden of proof to the defendant and requires him to prove, by a preponderance of the evidence that the injury was not the result of negligence.
7.3. INformed Consent
7.3.1. Elements
7.3.1.1. Actual damage resulting from the risk that the doctor failed to tell about
7.3.1.2. causation
7.3.1.3. 1. non disclosure of required/material information
7.3.2. Standards
7.3.2.1. Doctor
7.3.2.1.1. Objective
7.3.2.1.2. Subjective
7.3.2.2. Patient
7.3.2.2.1. Objective
7.3.2.2.2. Subjective