Legal Studies Ch.9 Negligence and Strict Liability

Define Actual cause (cause in the fact)- "but for"

the determination that the plaintiff's harm was a direct result of the defendant's breach of duty Would the plaintiff have been injured if the defendant had fulfilled his duty? Ex: P argues that the damages she suffered would not have occurred BUT FOR (except because of) the actions of the defendant Must be proven before Plaintiff can recover Harm suffered must be result of Defendant's actions Must be the cause and effect of Plaintiff's harm •E.g. - person breaks their arm when they are hit by a car riding their bicycle

Liability of Land Owners: Licsensee

person for his or her own benefit enter onto owner's property with permission Owes duty of ordinary care

What are the Doctrines that help a Plaintiff establish a case of Negligence

res ipsa loquitur Negligence Per se Danger invites Rescue Dram Shop Acts

Define the Good Samaritan Statutes:

statute that exempts from liability a person, such as a physician passerby, who voluntarily renders aid to an injured person but negligently, but not unreasonably negligently, causes injury while rendering aid.

Describe Contributory Negligence

the D can escape all liability by proving that the P failed to act in a way that would have protected him or her from an unreasonable risk of harm and that the P's negligent behavior contributed in some way to the P's accident. i.e a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant* No longer used in a lot of states

Describe Negligence per se:

"negligence in or of itself" Doctrine that allows a judge or jury to infer breach of duty from the fact that a D violated a statute that was designed to prevent the type of harm that the P incurred. Ex: say a Statute says its illegal to sell alcohol to minors and a minor drives drunk and kills 2 people the liquor store that sold the alcohol to the kid established negligence per se.

Describe Res ipsa loquitur:

"the thing speaks for itself" Allows a judge or jury to infer that, more likely than not, the defendant's negligence was the cause of the P's harm even though there is no direct evidence of the defendant's lack of due care EX: sponge left in shoulder. Used when you can't figure out exactly who is liable. In order to establish, you need: The event was a kind that ordinarily does not occur in the absence of negligence Other responsible causes, including the conduct of third parties and the P, have been sufficiently eliminated The indicated negligence is within the scope of the D's duty to the P. (2) Once a P has demonstrated these three elements, burden of proof shift to the D

Strict Liability Achieved when someone is involved with these three conditions:

(1) It involves a risk of serious harm to people or property (2) It is so inherently dangerous that is cannot ever be safely undertaken (3) It is not usually preformed in the immediate community.

What are two special defenses to Negligence

Good Samaritan Statutes Superseding Cause

Some states replaced contributory negligence with: Comparative Negligence: Describe Pure Comparative Negligence: OK follows comparative negligence

A defense accepted in some states whereby the D is not liable for the percentage of harm that he or she can prove can be attributed to the P's own negligence i.e. •doctrine under which damages are apportioned according to fault •Based on 100% liability •Car accident - Tom is found to be 80% at fault, Bill 20% and the total damages are $10,00 •OK has 51% rule as does most states. Oklahoma specifically has modified comparative. Any one party that is deemed to be over halfway responsible for the accident in question, and their own injuries, may not receive any damages. Courts Calculated damages according to modified comparative negligence:

Describe modified comparative negligence:

A defense whereby the D is not liable for the percentage of harm that he or she proves can be attributed to the P's own negligence if the D's negligence is responsible for less than 50 percent of the harm, the defendant has no liability.

Define Assumption of Risk and list its two types

A defense whereby the D must prove that the P voluntarily assumed the risk that the D caused Two types: Express assumption of the risk When the P expressly agrees (usually written contract) to assume the risk Implied Assumption of the risk: Means that the P implicitly assumed a known risk

Define an Unfortunate Accident

An accident that simply could not be avoided, even with reasonable care.

Define negligence What 4 elements (All 4) must be proved to be successful What is a person responsible for in Negligence

Behavior that creates unreasonable risk of harm to others. Negligent torts involve the failure to exercise reasonable care to protect another' person or property. To prove negligence, a plaintiff must demonstrate: (Have to have all 4) 1 - Defendant owed a duty of care 2 - Defendant "breached" (or failed ) this duty 3 - Plaintiff suffered injury because of it 4 - Defendant's negligent act caused the Plaintiff's injuries Responsible: A person is liable for harm that is the foreseeable consequence (or result) of their action

List defenses to Negligence:

Contributory Negligence Comparative Negligence Assumption of Risk Special Defenses to Negligence

Describe Superseding or Intervening Cause:

Defendant only liable for foreseeable events Meteor and ammonia ex.

Describe Duty -The Standard of care a reasonable person owes to another

Duty of Care- the obligation each individual has not to cause harm to another person "Reasonable Person standard" - Court looks to an objective, conscientious, careful person would have acted in the same situation A measurement of the way members of society expect an individual to act in a given situation 4 questions are asked in this: (i) How likely was it that the harm would occur? (ii) How serious was the harm? (iii) How socially beneficial was the defendant's conduct that posed the risk of harm? (iv) What cost would have been necessary to reduce the risk of the harm?

Describe Danger Invites Rescue doctrine

Example of plane going off runway into a river due to the airport's negligence and then people jumping in the river to help them and those people get hurt.

Describe Breach of Duty What ways can Breach of Duty be done Describe Injury to the Plantiff

Failure to live up to the standard of care as a reasonable person would Can be Action ex: leaving spilled water on a flow or InAction Hospital not helping a sick person Ex: the the driver of an automobile owes the other passengers in his car a duty of care to obey traffic signs. If he fails to stop at a stop sign, he has violated his duty. Injury to the Plaintiff - the plaintiff must suffer personal injury to themselves or to their property in order to recover E.g. - person backs into their own fence, no one is hurt and no real injury to fence - no recovery Damages depend on person/property injured •E.g. - baseball player and I get in accident and we both injure our arms..because baseball players NEED their arm for their job, they get more compensation

Describe Strict Liability (Liability without fault) Can be associated with Product liability.

Liability in which responsibility for damages is imposed regardless of the existence of negligence. Liability without fault Ex: Fireworks, chemicals, dynamite, wild animals. Firework show going bad and injury you. Despite assumption of risk because the public has to have some sort of compensation.

Describe Damages in Negligence

No Nominal Damages Compensatory Damages: In Negligence Cases courts rarely award Punitive Damages (exemplary damages) Usually only given in Gross Negligence cases An action committed with extreme reckless disregard for the property or life of another person.

List two other Negligence doctrines

Professional Malpractice Negligent Infliction of Emotional Distress

Describe the Dram Shop Acts:

Regulation under which bartenders can be held liable for injuries caused by individuals who become intoxicated in their bars

TF: If the P voluntarily and unreasonably encountered the risk of the actual harm the defendant caused, the D may raise the defense of assumption of risk to avoid liability.

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TF: •Defendants with an expertise (e.g. Doctor) are held to the standard of a "like" expert

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Tf: Proximate cause is defined by the majority of states as foreseeability of both the P and his injury, whereas in the minority of states proximate cause is the same as actual cause

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What must be proven in Contributory Negligence

The P's conduct fell below the standard of care needed to prevent unreasonable risk of harm The P's failure was a contributing cause to the P's injury. Someone's failure to wear a seatbelt in a car wreck, the failure constitutes contributory negligence because the person's action contributed to their injuries

Palsgraf v. Long Island Railroad Company

The landmark case establishing the doctrine of proximate cause The plaintiff, Helen Palsgraf, was waiting at a Long Island Rail Road station Two men attempted to board the train before hers; one (aided by railroad employees) dropped a package that exploded, causing a large coin-operated scale on the platform to hit her. She sued the railroad, arguing that its employees had been negligent while assisting the man, and that she had been harmed by the neglect. she obtained a jury verdict of $6,000, which the railroad appealed. Palsgraf gained a 3-2 decision in the Appellate Division, and the railroad appealed again. 4-3 majority of the Court of Appeals, ruling that there was no negligence because the employees, in helping the man board, did not have a duty of care to Palsgraf as injury to her was not a foreseeable harm from aiding a man with a package. The original jury verdict was overturned, and the railroad won the case

Define the Last-clear-chance doctrine:

Used by plaintiff when the D establishes contributory negligence. If P can establish that the Defendant had the last opportunity to avoid the accident, the P may still recover, despite being contributory negligent

Liability of Land Owners: Trespasser

doesn't have permission to be on land. Doesn't owe duty but can't willfully or wantonly injure a trespasser

In Negligence a person is liable for harm that is the ____________________- of their action

foreseeable consequence (or result) •An omission to do something which a reasonable person would do or doing something that a reasonably prudent person would not do •E.g. - throwing a lit cigarette out the window onto dry grass and causing a wildfire

Liability of Land Owners: Invitees

invitee is person who is invited onto owners property by owner

Define Proximate Cause (legal cause):

the point at which a negligent party is legally responsible or the foreseeability of the harm. •also known as "legal Cause" •Defendant not necessarily liable for all damages •Test - was it foreseeable that this action would result •Defendant who is NOT found to be proximate cause is not liable Most states, proximate cause requires that the P and the type of injury suffered by the P were foreseeable at the time of the accident. Thus, if a D could not reasonable foresee the damages that the P suffered as a result of his action, the P negligence claim will not be sustained because it lacks proximate cause. For example, if a defective tire on a vehicle blows out, it is foreseeable that the driver may lose control and hit a pedestrian. It is not foreseeable, however, that the pedestrian may be a scientist carrying a briefcase full of chemicals that cause an explosion and injury an accountant on the third floor of a building. So, in most states the accountant would not be able to sue the tire manufacturer for negligence because the tire failure does not institute proximate cause of the accountant injuries because the Pedestrian briefcase's contents were highly unusual. The pedestrian however, would be able to sue the tire manufacturer for negligence because hitting a pedestrian is a foreseeable consequence of tire failure. Thus. the defect in the tire was the proximate cause of the pedestrian's injury. Minority of states, proximate cause exist if the D actions led to the P's harm

Define Professional Malpractice

where a professional (lawyer, doctor, engineer) owes a professional duty •E.g. - lawyer not filing a suit on time •Doctor's mistakes

What Standard is used in Negligence

•Reasonable person Standard - what would a reasonable person have done or not done in the similar situation Question becomes - who is this "reasonable person" going to be different depending on who the defendant is

Describe Causation

•a person isn't liable unless the act causes the plaintiff's harm. Must prove both elements of Causation to be able to recover damagers: (1) Actual Cause (cause in the fact)- "but for" (2) Proximate Cause (legal cause):

Define Negligent Infliction of Emotional Distress

•allows for a person to recover for emotional distress caused by the defendant's conduct •E.g. - mother witnessing her child getting hit by a car