베이비바 뽀개기/2013년 6월: 두 판 사이의 차이

신디(원고) 대 에이브(피고)

=====과실=====

의무-- Generally one owes a duty of reasonable care to all foreseeable plaintiffs under the circumstances. Here, there are no special relationships between Cindy and Abe, so Abe will be held to this reasonably prudent person standard.

위반-- The duty is breached if the defendant fails to act as a reasonably prudent person under the circumstances. One method to determine if a duty is breached is to compare the burden to avoid the harm and the utility of the defendant's conduct against the gravity of harm combined with the likelihood of the harm. Here, Abe's burden to avoid any harm was rather low, since all he needed to do was not cut down the tree. Additionally, Abe may have been able to simply contact the local municipality and have them address his problem with the tree. The utility of Abe's conduct is also rather low, since his only benefit was the relief from having to rake leaves. The gravity of the harm suffered by Cindy was great as she suffered serious injury. The likelihood of Cindy suffering such injury was also relatively high, since Abe knew that Bill was in the tree and was likely to be injured, which would prompt a passerby to assist Bill. Based on this analysis, Abe breached his duty of reasonable care to Cindy, since the gravity of harm and the likelihood of harm greatly outweigh the burden to avoid the harm and the utility of Abe's conduct.

인과관계-- In order to be liable for negligence, the defendant must be both the actual cause and proximate cause of the harm.

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.

손해-- Cindy suffered serious injuries, so this element is obviously satisfied.

* 쌍방 과실

 

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.