Tuesday, September 10, 2013

The Duty of Care

After determining that a foreseeable plaintiff is owed a duty of care, the next step in any negligence question is to determine whether defendant breached the duty of care. The standard shifts under certain circumstances, making this a tricky element to analyze, but keeping the following in mind should prove helpful.

There is a general standard of care, and then there are some exceptions to the general standard. The general standard is the reasonable person standard. This is an objective standard, and measures one’s conduct against how the average person would act under similar circumstances. The “reasonable person” is considered to have the same physical characteristics of defendant, so that physical characteristics are taken into account when determining if defendant did not act reasonably, thereby breaching his duty of care. Generally, however, mental deficiencies or inexperience is not taken into account.

Then there are the exceptions. Professionals are held to a higher standard of care in regards to any act that is connected to their specialty. They are required to possess the knowledge and skill of a member in good standing of the profession. Children are held to the standard of children with like age, education, intelligence, and experience. Children involved in adult activities, however, are generally held to the standard of a reasonable adult. In addition, common carriers and innkeepers are held to a very high standard of care, so that the slightest breach will suffice. In an emergency situation, all people are expected to act as a reasonable person would act under those same emergency circumstances, but note that if defendant causes the emergency, the fact that he is then placed into such a situation will not change the general standard of care (the reasonable person standard).

Analyze as stated above, and once you've determined that a breach has occurred, start thinking about causation.

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