베이비바 뽀개기/2013년 6월: 두 판 사이의 차이
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26번째 줄:
=====과실=====
A person is liable for negligence if they owe a duty, the duty is breached, they are the cause of harm, and the other party suffers damages.
Actual cause-- one test used to determine actual cause is the but for test; but for Abe's cutting down the tree, would Cindy have been injured? Clearly the answer is no, so under this test Abe is an actual cause of harm. Another test used to determine actual cause is the substantial factor test; was Abe a substantial factor in Cindy's harm? Again the answer is clear; Abe was a substantial factor in Cindy's harm. Under either test, Abe is an actual cause of harm.
Proximate cause-- Were there any intervening acts which caused Cindy's harm? Abe may contend that the car which struck Cindy was an intervening act, but this act was foreseeable since the tree was caused to fall into the street. Therefore, this intervening act would not cut off liability. Next we ask, was the harm suffered by Cindy foreseeable• Since the tree had fallen in the street, and since Bill was in the tree when it was cut down, it was entirely foreseeable that a passerby would stop to render aid to Bill. It is also foreseeable that Cindy would suffer both the type of injury suffered and the extent of the injury. Therefore, Abe is a proximate cause of Cindy's harm.
* 쌍방 과실
Comparative fault/Contributory negligence-- If Cindy failed to act in a reasonable way and was a cause of her own injuries, then she could be found to be comparatively at fault or contributory negligent, depending on the jurisdiction. The majority rule is comparative fault, which states that plaintiff's damages will be reduced by the proportion of their fault in their own injury.▼
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Contributory negligence states that plaintiff's recovery will be barred if found to be a cause of their own injury. Cindy can claim that she acted perfectly reasonable under the circumstances, because there was an emergency situation. Under emergency situations, the actor is to act reasonably under the circumstances at hand, even if in hindsight it is shown that they did not take the wisest course of action. Cindy most likely will be found to have acted reasonably under the circumstances, and her recovery will not be reduced or barred.
Conclusion-- Cindy will prevail and she will be entitled to compensatory damages which would include medical expenses, lost time from work, and pain & suffering. If it was found that Abe acted maliciously, then punitive damages may also be awarded.
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=====고의적인 정신적 가해행위=====
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