They may feel that there is no societal role for their gender, and so no way to express this that would be recognised by others.
Part 4 - The Written Answer The injured individuals can seek damages based on a theory of negligence. I will examine the potential liability of each party in turn. The prima facie case for negligence is established by showing a duty of reasonable care, breach of the duty, actual and proximate cause and damage.
David Although David may have breached a duty in not looking when changing lanes, he has a defense in the emergency doctrine. To prove negligence, Peter has the burden to prove that David had a duty to drive more carefully.
One theory would be that David should drive slower than the speed limit when kids were present. Evidence of breaking the law is automatically considered a breach of a duty, but not breaking the law doesn't necessarily establish that a breach didn't occur. All of the facts and circumstances must be considered.
Since 25 MPH is a standard speed limit for residential areas where kids normally play, I don't think that David had a duty to drive slower. David, however, probably breached a duty of care by not looking before he changed lanes.
A reasonable and prudent person would naturally look before changing lanes. Here, however, David can claim two defenses.
First, he can claim contributory negligence since Peter was speeding. See below for an analysis of Peter's liability. Second, David can claim the emergency doctrine. Since his swerving into the lane avoided an accident with Kevin, he was justified in making the split-second decision to swerve.
I think that under the duty of reasonable care analysis, David acted with the care of an ordinary and prudent person under the circumstances of an emergency. Therefore, David will probably not be found negligent in regard to Peter's claim.
Even if he is found negligent, David's liability is limited if Peter is found to be liable for contributory negligence. David As to Kevin's claim of negligence against David, it is arguable that David's action was the cause of the injury that occurred to Kevin.
Under the "but-for" standard of review, if he hadn't swerved into the other lane, he would not have sent Peter's car crashing into the phone pole.
However, Kevin's claim against David probably loses on the issue of proximate cause. Proximate cause limits the liability of David to those risks that were foreseeable.
Here, I don't think that a telephone pole snapping in half and falling on top of a kid is a likely result from swerving into another lane in order to avoid the kid in the first place. It is as improbable a result as that in Palsgraf. David is probably not liable for negligence in regard to Kevin's injuries.
Peter Both Kevin and David can state a claim against Peter for their damages as a result of Peter's negligence in driving over the speed limit. Peter is liable under the theory of negligence per se since he was over the speed limit.
Breaking the law - such as posted speed limits - creates a rebuttable presumption of negligence and doesn't require further analysis. Peter can rebut the presumption of negligence by showing it was the custom to speed on that street; however, the fact that children were present would go to show that Peter had a duty of care to ignore the custom and slow down under those circumstances.
Peter can also argue contributory negligence against both David for swerving and Kevin for running into the street. While David was not judged to be negligent for, I don't think his claim for damages to his car will survive. Peter's claim of contributory negligence against David is valid since David had a duty to look before changing lanes.
Although the emergency doctrine relieves David of liability, it does not confer liability on Peter. David, or his insurance company, will probably have to pay damages on David's car.
Kevin will be judged by the standard of what a reasonable and prudent nine year old would do when playing games in his own neighborhood. The neighborhood represents safety in Kevin's mind, thus an exuberant pre-teen might feel safe enough to run in the street.
Even so, most kids are taught at an early age to look both ways before crossing the street. I think it is likely that Kevin, or his parents, will bear some responsibility for Kevin's injuries since he did not belong in the street. Peter's strongest defense against Kevin's claim is to argue - as David did above - that the injuries arising form the telephone pole were not foreseeable and therefore the damage is too attenuated for Peter to be held liable.
Here, it is less clear. The casual connection is closer than it was with David. I think that it is foreseeable that when someone is speeding they might lose control and damage would result from that loss of control.
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