Book: BUSINESS LAW, Text and Cases Volume I, Clarkson, Miller, & Cross

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Chapter 7

Negligence and Strict Liability

Negligence involves acts that depart from a reasonable standard of care, creating an unreasonable risk of harm to others. Strict liability is liability for injury imposed for reasons other than fault.

1. Negligence

Negligence: Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances.

n In contrast to intentional torts, negligence:

1. requires no intent on the part of the tortfeasor,
2. nor does it require that the tortfeasor know or believe the consequences that his act or omission may cause.

Negligence merely requires that the tortfeasors act or omission create a risk of the consequences complained of by the injured party.

n Actionable negligence requires that these 4 elements exist:

1. the tortfeasor owed the plaintiff a duty of care,

2. which the tortfeasor breached,

3. actually causing the plaintiff

4. a legally recognizable injury.

*1,2) Duty of Care and its Breach: The duty of all persons to exercise reasonable care in their dealings with others. A failure to comply with the duty of care requirement may consist of an act or its omission.

n Reasonable Care: The degree of care expected of a hypothetical reasonable person; not necessarily how a reasonable person would act, rather how a reasonable person should act.

n Tort law presumes that the reasonable person will be, at a minimum:

careful, conscientious,even tempered, and honest.

No Duty to Rescue: If a person fails to aid a stranger in peril, that person would not be negligent under tort law, although most people would impose an ethical duty on the person to render aid.

DUTY OF CARE ON PREMISES:

n Duties of Landowners: Landowners are expected to exercise reasonable care to protect from harm those persons coming onto their property even trespassers.

n Business Invitees: Retailers and other business that explicitly or implicitly invite persons to come onto their premises are expected to exercise reasonable care toward these business invitees.

n Obvious Risks: Some risks are so obvious that the owner need not warn even invitees.

DUTY OF CARE OF PROFESSIONALS:

n Duties of Professionals: If an individual has knowledge, skill, or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a reasonable professional can result in the professional being subject to liability for professional malpractice.

3) Causation:

1. Causation in Fact

The breach of the duty of care must cause the injurythat is, but for the wrongful act, the injury would not have occurred.

2. Proximate Cause

There must be a connection between the act and the injury strong enough to justify imposing liability.

n A common and critical element of proximate cause is foreseeability if the consequence of the act or omission or the victim who is harmed by the act or omission is unforeseeable, no proximate cause exists.

*4) Injury

n The purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.

To recover damages, a party must have suffered a loss, harm, wrong, or invasion of a protected interest.

Damages: Compensatory damages are the norm, but punitive damages may be awarded if a defendant was grossly negligent (acted with reckless disregard for the consequences).

NEGLIGENCE: DEFENSES

Besides the following defenses, a defendant might assert that a plaintiff failed to prove one of the required elements of negligence.

1. Assumption of Risk

A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor.

n Risk may be assumed by express agreement or be implied by the plaintiffs knowledge and conduct.

n Plaintiffs do not assume risks other than those inherent in the situation.

n Assumption of risk will not arise in emergencies.

n Assumption of risk will not arise when the plaintiff is a member of a statutorily-protected class of persons.

2. Contributory and Comparative Negligence

1. Contributory Negligence

In some states, a plaintiff cannot recover for an injury if he or she was negligent.

No matter how insignificant the plaintiffs own negligence is when compared to that of the defendant, in a minority of jurisdictions any negligence on the part of the plaintiff that contributed in any way to the injury of which plaintiff complains will bar the plaintiff from recovering damages from defendant.

2. Comparative Negligence

More popular today than contributory negligence, a comparative negligence scheme permits plaintiff to recover only for the percentage of his or her injury or loss that was not caused by plaintiffs own negligence.

• The plaintiffs and the defendants negligence is compared and liability prorated.

• • 50% Caps Some jurisdictions further refuse to permit a negligent plaintiff from recovering any damages if the plaintiff is responsible for more than 50% of his or her own injury or loss.

    SPECIAL NEGLIGENCE RULES

    Good Samaritan Statutes: Many states have passed legislation preventing those who are aided voluntarily from then suing the person who rendered the assistance.

    n Dram Shop Liability: Many jurisdictions hold that a business, and in some jurisdictions an individual, that served alcoholic beverages to a person after he or she arrived intoxicated or became intoxicated is liable for any injuries caused by the intoxicated patron or guest.

  • NEGLIGENCE PER SE

    n Negligence Per Se: An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party.

    n The plaintiff must prove that:

  • the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected, and of whom it is expected,
  • the plaintiff is in the class of persons intended to be protected by the statute or ordinance, and
  • the statute or ordinance was intended to prevent the type of injury that the plaintiff suffered as a result of the defendants wrongful act.

• STRICT LIABILITY

  n Strict Liability: Liability regardless of fault. Among others, defendants whose activities are abnormally dangerous or involve dangerous animals are strictly liable for any harm caused.

  n Abnormally Dangerous Activities: Some activities are so inherently dangerous that they give rise to liability without regard to fault because the activity

• involves serious potential harm to persons or property,
• involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable care, or
• is not commonly performed in the community or under the circumstances.

• n Animals: A person who keeps a wild animal is strictly liable for any harm the animal inflicts; whereas, the owner of a domestic animal is only strictly liable if she knew or should have known that the animal was dangerous or had the propensity to harm others.