Real Property Condition and Owners Occupants and Lessors

5.20H – Dangerous Instrumentalities Or Conditions


A. In General
The law imposes upon a defendant the duty to exercise the care that a reasonably prudent person would exercise under all the circumstances confronting him/her at a particular time. Failure to exercise such care constitutes negligence.

Obviously the risk of harm will vary with the circumstances. In some settings that risk is greater than in others, and, when this is so, a reasonably prudent person will exercise a greater amount of care, that is, care in proportion to the increased risk.

Whoever uses a highly destructive agency is held to a correspondingly high degree of care toward all persons who in the exercise of their lawful right may come in contact with it.

The responsibility imposed is the use of reasonable care consistent with the dangerous instrumentality employed and a proper anticipation of the results which could be reasonably foreseen.

Ordinarily, the adoption and operation of a method which accords with that in general use by well regulated companies satisfies the duty of due care owed. But the care which must be exercised over the construction and maintenance of a highly destructive agency requires more than the use of mere mechanical skill and approved mechanical appliances. It also includes circumspection and foresight with regard to reasonably probable contingencies.

It is for you to determine from the evidence whether the defendant used reasonable care under the circumstances, considering the dangerous instrumentality employed and a proper anticipating of the results which could reasonably have been foreseen.

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