chapter 7: negligence and strict liability

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Tortfeasor does not intend the consequences of the act or believes they will occur.

Actor’s conduct merely creates a foreseeable risk of injury.

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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.

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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.

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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?

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Duty of Landowners (continued). Duty to Warn Business Invitees of

Foreseeable Risks (knew or should have known).

EXCEPTION: Obvious Risks.

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Duty of Professionals. Professionals may owe higher duty of

care based on special education, skill or intelligence.

Breach of duty is called professional malpractice.

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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.

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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, andProximate Cause.

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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.

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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?

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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.

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Assumption of Risk. Superseding Intervening Cause. Contributory or Comparative

Negligence.

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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.

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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?

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

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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.

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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.

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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%.

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Res Ipsa Loquitur.Facts and circumstances create

presumption of negligence by Defendant.

Burden of proof shifts to Defendant to show he was not negligent.

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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.

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“Danger Invites Rescue” Doctrine. Good Samaritan Statutes. Dram Shop Acts.

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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.

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Ultraharzardous or abnormally dangerous activities:Involve serious potential harm;Involve high degree of risk that cannot

be made safe; andAre not commonly performed in the

community or area.

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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.

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Product Liability: manufacturers can be found liable without regard to fault (see Chapter 22).

Bailments: when goods temporarily transferred to another (see Chapter 49).

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chapter 7: negligence and strict liability

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