business law: chapter 7, the ethical, global, and e-commerce environment, 14th ed.,by mallor,...
TRANSCRIPT
CrimesIntentional Torts
Negligence & Strict LiabilityIntellectual Property & Unfair
Competition
© 2010 The McGraw-Hill Companies, Inc. All rights reserved.
Negligence and Strict Liability
Mistakes are a fact of life. It is the response to error that counts.
Nikki Giovanni
© 2010 The McGraw-Hill Companies, Inc. All rights reserved.
Learning Objectives
The Elements of Negligence Defenses to Negligence Special Doctrines Related to Negligence
7 - 3
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
Negligence
7 - 4
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 A duty may arise if a special relationship
existed between the parties Examples of a special relationship:
doctor-patient, lawyer-client, accountant-client
Duty of Due Care
7 - 5
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
The test focuses on defendant’s behavior, not defendant’s intent Reckless behavior may be unreasonable
Breach of Duty of Due Care
7 - 6
Injuries may include bodily or emotional injury, and property or economic damage
Causal link between the alleged misconduct and the injury 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
Causation and Injury
7 - 7
An event that occurs after initial breach of duty may worsen a plaintiff’s injury Example: plaintiff injured in accident and
while unconscious, a thief steals the plaintiff’s wallet
If latter event is foreseeable, defendant will be deemed liable
If latter event not foreseeable, defendant will be absolved from liability Example: Stahlecker v. Ford Motor Co.
Causation and Injury
7 - 8
An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself)
Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) harm would not occur in absence of negligence, and (3) plaintiff not responsible for his own injury Example: after abdominal surgery, patient
complains of pain in abdomen and X-ray shows surgical clamp left in abdomen
Causation and Injury
7 - 9
Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety Example: auto accident in which
defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully
Defenses:Contributory Negligence
7 - 10
Contributory negligence used to be a complete defense, but most states enacted comparative negligence systems in which a court or jury will determine relative negligence of parties and award damages in proportion to the degrees of negligence
Comparative Negligence
7 - 11
Assumption of risk is the plaintiff’s voluntary consent to a known danger Example: plaintiff
goes snowboarding and breaks leg during a fall
Defenses:Assumption of Risk
7 - 12
One can expressly assume the risk of injury by entering into a contract that attempts to relieve the defendant of a duty of care otherwise owed to plaintiff Such contract provisions are called
exculpatory clauses
Defenses:Assumption of Risk
7 - 13
Premises liabilityNegligence Per SeStrict Liability
Special Doctrines
7 - 14
Based on the duty a property owner or tenant has to those on the property
Duty varies with type of person on property
Invitee (business visitor or member of the public) Owner or tenant must exercise
reasonable care for safety of his/her invitees
Premises Liability Cases
7 - 15
Licensee (those on property for his/her own purpose) Owner or tenant obligated only to warn
licensee of hidden, dangerous conditions Trespasser (those on property illegally)
Owner or tenant owes no duty, but may not willfully injure trespassers
Premises Liability Cases
7 - 16
The defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff (1) was within the class of persons intended to
be protected by the statute or other law, and (2) suffered harm of a sort that the statute or
other law was intended to protect against
Negligence Per Se
7 - 17
Liability without – or irrespective – of fault Thus, a defendant is liable even though
s/he did not intend to cause harm and did not act recklessly or negligently
Basic for product liability cases
Strict Liability
7 - 18
Imposing strict liability is a social policy decision that risk associated with an activity, especially an abnormally dangerous activity, should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk
Strict Liability
7 - 19