Chapter 7: Negligence and Strict Liability

TWELFTH EDITION Chapter 7: Negligence and Strict Liability Clarkson Miller  Cross BUSINESS LAW TEXT AND CASES Legal, Ethical, Global, and Corporate Environment

§1: Negligence • Tortfeasor does not intend the consequences of the act or believes they will occur. • Actor’s conduct merely creates a foreseeable risk of injury. 

Negligence • Analysis: • Duty: Defendant owed Plaintiff a duty of care; • Breach: Defendant breached that duty; • Causation: Defendant’s breach caused the injury; • Damages: Plaintiff suffered legal injury.

Duty of Care and Its Breach • Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. • A foreseeable risk is one in which the reasonable person would anticipate and guard against it.

Duty of Care and Its Breach • Duty of Landowners to warn invitees, exercise reasonable care. • Landlords owe duty of reasonable care to tenants and guests for common areas such as stairs and laundry rooms. • CASE 7.1 McClain v. Octagon Plaza, LLC. (2008). Can a landlord be liable for negligent misrepresentation about the size of a leased space?

Duty of Care and Its Breach • Duty of Landowners (continued). • Duty to Warn Business Invitees of Foreseeable Risks (knew or should have known). • EXCEPTION: Obvious Risks.

Duty of Care and Its Breach • Duty of Professionals. • Professionals may owe higher duty of care based on special education, skill or intelligence. • Breach of duty is called professional malpractice.

Duty of Care and Its Breach • No Duty to Rescue. • Law requires individuals to act reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust. • However, if rescue is attempted, the law requires due care and follow through.

Causation • Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Causation is both: • Causation in Fact, and • Proximate Cause.

Causation in Fact • Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? • Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.

Proximate Causation • An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. • CASE 7.2 Palsgraf v. Long Island Railroad Co. (1928). Were the plaintiff’s injuries foreseeable?

The Injury Requirement and Damages • To recover, Plaintiff must show legally recognizable injury. • Compensatory Damages are designed to reimburse Plaintiff for actual losses. • Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.

§2: Defenses to Negligence • Assumption of Risk.  • Superseding Intervening Cause. • Contributory or Comparative Negligence.

Assumption of Risk • Plaintiff has knowledge of the risk, and voluntarily engages in the act anyway. • Defense can be used by participants, as well as spectators and bystanders. 

Assumption of Risk • Assumption of the risk can be express or implied. • Express by agreement. • Implied by plaintiff’s knowledge of risks and subsequent conduct. • CASE 7.3 Pfenning v. Lineman (2010). Is the driver of a beverage cart a “participant” at a golfing event?

Superseding Cause • A unforeseeable, intervening act that breaks the causal link between Defendant’s act and Plaintiff’s injury, relieving Defendant of liability.

Contributory and Comparative Negligence • Under common law doctrine of contributory negligence, if Plaintiff in any way caused his injury, he was barred from recovery. • Most states have replaced contributory negligence with the doctrine of comparative negligence.

Contributory and Comparative Negligence • Comparative negligence computes liability of Plaintiff and Defendant and apportions damages. • Pure Comparative Negligence States (California and New York): allows Plaintiff to recover even if his liability is greater than that of Defendant.

Contributory and Comparative Negligence • Modified Comparative Negligence States: percent of damages Plaintiff causes herself are subtracted from the total award. • 50 Percent Rule: Plaintiff recovers only if liability is less than 50%. • 51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50%.

§3: Special Negligence Doctrines and Statutes • Res Ipsa Loquitur. • Facts and circumstances create presumption of negligence by Defendant. • Burden of proof shifts to Defendant to show he was not negligent.

Special Negligence Doctrines and Statutes • Negligence Per Se occurs when Defendant violates a statute designed to protect Plaintiff: • Statute sets out standard of care. • Plaintiff is member of class intended to be protected by statute. • Statute designed to prevent Plaintiff’s injury.

Special Negligence Doctrines and Statutes • “Danger Invites Rescue” Doctrine. • Good Samaritan Statutes. • Dram Shop Acts.

§4: Strict Liability • Development of Strict Liability. • Theory of strict liability started with Rylands v. Fletcher (1868 England). • Defendant’s liability for strict liability is without regard to: Fault, Foreseeability, Standard of Care or Causation. • Strict liability based on abnormally dangerous activities is one application.

Abnormally Dangerous Activities • Ultraharzardous or abnormally dangerous activities: • Involve serious potential harm; • Involve high degree of risk that cannot be made safe; and • Are not commonly performed in the community or area.

Other Applications of Strict Liability • Wild Animals: • Persons who keep wild animals are strictly liable for injuries caused by the beast. • Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous.

Other Applications of Strict Liability • Product Liability: manufacturers can be found liable without regard to fault (see Chapter 22). • Bailments: when goods temporarily transferred to another (see Chapter 49).

Chapter 7: Negligence and Strict Liability