I am not familiar with the business practice rule. Is it a statutory rule? On its face, it looks similar to landowner's rule that landowners have to take care their invitees. Not sure about the burden of proof. It is always the case that the plaintiff has to prove EVERY element of the offense by preponderance of evidence. The only time the defendant needs to prove by preponderance is when he raises defense. There are generally two affirmtive defenses available, contributory negligence (modern trend is to use comparative negligence), and assumption of risk. In comparative negligence defense the defendant essentially has to prove elements of negligence by the plaintiff. In assumption of risk, the defendant has to prove (1) the plaintiff knows the risk, (2) he understands the risk, and (3) he still voluntarily exposed himself into the risk. Which, does not seem to fit into the business practice rule. Some jurisdictions have their own statutory affirmtive defenses and they can ask the defendant to prove whatever they want to. In common law, plaintiff always has the burden of proof. This is even so in criminal cases. If the defense is on an element of the crime, the defendant does not even have to prove anything. All he needs to do is to raise a reasonable doubt.
回复:回复:回复:I heard if someone got injured in your house,
I am not familiar with the business practice rule. Is it a statutory rule? On its face, it looks similar to landowner's rule that landowners have to take care their invitees. Not sure about the burden of proof. It is always the case that the plaintiff has to prove EVERY element of the offense by preponderance of evidence. The only time the defendant needs to prove by preponderance is when he raises defense. There are generally two affirmtive defenses available, contributory negligence (modern trend is to use comparative negligence), and assumption of risk. In comparative negligence defense the defendant essentially has to prove elements of negligence by the plaintiff. In assumption of risk, the defendant has to prove (1) the plaintiff knows the risk, (2) he understands the risk, and (3) he still voluntarily exposed himself into the risk. Which, does not seem to fit into the business practice rule. Some jurisdictions have their own statutory affirmtive defenses and they can ask the defendant to prove whatever they want to. In common law, plaintiff always has the burden of proof. This is even so in criminal cases. If the defense is on an element of the crime, the defendant does not even have to prove anything. All he needs to do is to raise a reasonable doubt.
所有跟帖:
• business practice rule -68106- ♀ (1296 bytes) () 12/08/2005 postreply 10:43:31
• Sounds like a good rule -66196- ♀ (1628 bytes) () 12/08/2005 postreply 13:30:30