Goss v. Allen 

Children

Whether a child should be held to the same standard of care as an adult. 

Child Reasonableness 

Child of "similar age", intelligence, and experience under like circumstances.
May be set by statute or state's common law (age limit)
NC- Rule of 7's (<7-cannot be negligent / 7-14 - rebuttable presumption of no capacity to commit negligence / R2T - <5 no negligence
Exception: Dangerous activities 

Breuing v. American Family Ins. Co. 

Mental Capacity

Insanity / Mental Incapacity

Majority Rule:  

Not a defense to negligence

May be a factor in determining contributory negligence

Intoxication - not a defense - must act as an ordinary, sober person

SATL p. 264 

Quoting Prosser and Keeton on Torts

Superior Abilities

General Rule

The Reasonable Person Standard

Relevant Circumstances

Physical handicap (ADD IN RELEVANT CASES) 

Children (NC Rule of 7's)

Superior skill, knowledge, or experience

Emergency

Illness

Gender

But Not:

Elderly

Intoxication

Mental deficiency

An informed professional judgment made with reasonable care and diligence cannot be the basis of a legal malpractice claim.

1.  Clients

2.  Prospective Clients

3.  Non-clients:  third-party beneficiaries; spouse on consortium claim.  Strict privity required.

Must show that but for negligence the Plaintiff would have prevailed in the underlying action. 

1.  Contributory negligence

2.  Failure to appeal (BOP on defendant attorney to show it would have been successful)

3.  Fee Offsets (generally - no)

4.  Collectibility

5.  Exoneration or Innocence

An attorney implicitly represents that she or she:

1.  Possesses the ordinary degree of learning, skill, and ability

2.  Will exercise his or her best judgment

3.  Will be diligent and careful in using professional skill and knowledge

Gnearlly, there is:

1.  No liability for a mere error of judgment on which reasonable lawyers may differ

2.  No guarantee of success

Attorney's Duty:  Standard of Care

1.  No good faith exception

2.  Debatable questions and novel theories

3.  Inadequate settlement (split authority)

4.  Recommending specialist

Question of Fact

Judicially declared standard / duty

-Helling v. Carey - glaucoma pressure testing

-Holmes RR Crossing Duty

Legislatively Established Duty - may be delegated

Judicial Interpretation 

Breach of a duty to exercise reasonable care under the circumstances.

KNOW

Elements:

1.  Duty

2.  Breach

3.  Causation

4.  Damages

A statute defines the standard of care if; 

1.  The legislature says that it does so (Consider; definitional applicability, constitutionality)

2. The courst says that it does so (Consider; Class of persons intended to be protected, 

1. Incapacity (children, physical disability)

2. Ignorance of the need to comply (know or should have known)

3. Inability to comply despite diligence

4. Emergency

5. Greater risk of harm 

Nourse v. Food Lion

127 N.C. App. 235 (1997)

P specifically alleges that D was negligent by failing:

a. to properly keep an outlook to ensure that the floor surfaces were free of debris.

b.  to properly train agents and employees in methods of detecting and eliminating floor debris.

c. to develop or enforce proper methods to see that produce and liquid did not accumulate on the floor.

d. to adequately inspect the floor surfaces 

Constructive Notice

Defined:  Such notice as is implied or imputed by law.  Notice with which a person is charged by reason of the nature of the thing to be noticed.

Relevant Considerations

Discoloration or alteration

Proximity (employee)

Opportunity to discover

Absence of inspection

Prior occurrences

Mode of Operation Approach

See Sheehan v. Roche Brothers Supermarkets, Inc.

Premises Liability

KNOW 

Premises Liability:  2 approaches

Traditional Approach

Mode of operation approach 

Know parameters, how applied in re to jurisdiction 

Premises Liability 

Leggett v. Thomas and Howard (68 N.C. App. 710 (1984)

D's store open since 07:30.  Raining all morning.  No mats at entrance to store.  Store had not dry mopped the floor.  Approx. 11:00 a.m. P enters store.  Slips and falls approx. 10' from the entrance.

Trial Court - DV for D.  P failed to prove D had notice of wet spots on floor.

Plaintiff offered evidence from two witnesses who managed stores which were located in the same county and contained the same kind of floor tiles as D's.  They would have testified that such tile is slick or slippery and dangerous when wet; that 

Res Ipsa - KNOW THESE TWO FACTORS

Factors

1.  The character of the accident is such that it would not ordinarily occur in the absence of negligence; and 

2.  the instrumentality causing the injury is shown to have been under the management and exclusive control of the defendant. 

Procedural Effect of Res Ipsa 

1.  Rebuttable presumption of negligence - D must present evidence of no negligence. 

2.  Shifts burden of proof to D - must prove no negligence 

3.  Permissible inference of negligence

Jury is either told that "the Plaintiff or Defendant must prove to you by the greater weight of the evidence..."

Control Based on Non-Delegable Duty

See:  Mohawald v. Minnesota Gas Co.