Crimes & Torts

2. 2 Crimes & Torts Crimes Intentional Torts Negligence & Strict Liability Intellectual Property & Unfair Competition McGraw-Hill/Irwin Business Law, 13/e © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

3. Negligence & Strict Liability 7 C H E A P T R “Mistakes are a fact of life. It is the response to error that counts.” Nikki Giovanni

4. Learning Objectives • The Elements of Negligence • Defenses to Negligence • Special Doctrines Related to Negligence 7 - 4

5. Negligence • The elements of a negligence claim are • Defendant owed a duty of care to plaintiff, • Defendant committed a breach of duty, • Breach was actual and proximate cause of • Injury experienced by the plaintiff 7 - 5

6. Duty of Due Care • In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant’s conduct • If a duty existed, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances • Reasonable person standard 7 - 6

7. Causation and Injury • Injuries may include bodily or emotional injury, and property or economic damage • Causal link requires: • Actual cause: plaintiff would not have been hurt “but for” defendant’s breach of duty (act or omission) • Proximate cause: plaintiff’s injury was foreseeable consequence of defendant’s act or omission 7 - 7

8. Causation and Injury • An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself) • Applies when: (1) defendant has total control of the instrument of harm, (2) harm would not occur in the absence of negligence, and (3) plaintiff not responsible for his own injury 7 - 8

9. Defenses to Negligence Claim • Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety • Assumption of risk is the plaintiff’s voluntary consent to known danger 7 - 9

10. Special Doctrines • Premises liability cases are based on the duty a property owner or tenant has to those on property and vary with type of person: • Invitee, licensee, or trespasser • Negligence per se applies when defendant’s violation of law creates a breach of duty and may allow the plaintiff to win by suffering harm the law was enacted to prevent 7 - 10

11. Special Doctrines • Strict liability is liability imposed upon a defendant regardless of defendant’s fault • A social policy decision that risk associated with an activity, especially an abnormally dangerous activity (including manufacturing), should be borne by those who pursue it rather than by innocent persons exposed to that risk • Basis for product liability cases 7 - 11

12. Test Your Knowledge • True=A, False = B • A duty of due care may arise only if a contract or statute creates such a duty • Without a duty, there can be no breach • Res ipsa loquitur means the thing speaks for itself and is related to causation • Negligence per se occurs when a plaintiff contributed to his or her own injury 7 - 12

13. Test Your Knowledge • True=A, False = B • Contributory negligence and comparative negligence mean the same thing • Assumption of risk is the plaintiff’s voluntary consent to a known danger • Imposing strict liability is a social policy decision 7 - 13

14. Test Your Knowledge • Multiple Choice • Elements of a negligence claim include: • (a) duty of due care • (b) breach of the duty of due care • (c) causation (actual and proximate) • (d) injury to plaintiff • (e) all of the above • The reasonable person test focuses on: • (a) Defendant’s behavior • (b) Defendant’s intent 7 - 14

15. Test Your Knowledge • Multiple Choice • The causation element requires proof of: • (a) actual cause (the “but for” test) • (b) proximate cause • (c) sufficient cause • (d) both (a) and (b), but not (c) • A property owner or tenant must exercise reasonable care for the safety of his/her: • (a) Invitees • (b) Licensees • (c) Trespassers 7 - 15

16. Thought Question • Do you think tort reform is necessary? 7 - 16