Monday, February 22, 2010
1 - Torts - Negligence (Introduction)
Negligence – Introduction
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL. IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR. IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
The casebook I use to teach torts is Torts and Compensation, Personal Accountability and Social Responsibility for Injury, Fifth Edition, American Casebook Series, Dan B. Dobbs and Paul T. Hayden. It is a very good casebook and I will draw a lot from it on this topic. There are various ways to define negligence. In the Dobbs casebook, at page 148, Negligence is defined as “… conduct that imposes unreasonable risks of harm.” I tell my students to start with a nice, concise statement. It is easy to memorize and can be placed on paper quickly.
From there, I tell my students to immediately list the elements of negligence. Depending on who you ask, there are generally four to six elements: (1) Duty (with Standard of Care), (2) Breach of Duty, (3) Causation, (4) Damages and (5) Lack of Defenses.
When I was in law school, neither standard of care nor lack of defenses were listed as elements. Consequently, students often forgot to talk about them on exams.
Today, many professors, include standard of care, but some do not. I do not. When it is not noted as a formal element, it is often embedded in the duty discussion. Some include it in the breach discussion. I simply believe it causes students to have a better discussion of the standard of care, if it is seen as part and parcel of the duty element.
Most professors do not include the lack of defenses as an element. Though I don’t include it as a formal element, I try to make it very clear to my students that any essay where the facts call for an analysis of negligence will likely fail if defenses are not discussed, unless defenses are excluded by the professor or the call of the question. So, one increases the probability of discussing this element, if it is a part of the list of elements. I doubt any professor would deduct from a student’s score merely because the student listed lack of defenses as an element.
What I plan to do from here is to look at each element of negligence, one by one.
Professor Doug Holden
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