Blaw 342 Chapter 5 Negilence

contributory negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely.

comparative negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely. However, if Plaintiff is more than 50% liable, Plaintiff recovers nothing

Dram Shop Acts

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.

Example of proximate cause

Ackerman carelessly leaves a campfire burning. The fire not only burns down the forest, but also sets off an explosion in a nearby chemical plant that spills chemicals into a river, killing all the fish for a hundred miles downstream and ruining the economy of a tourist resort. Should Ackerman be liable to the resort owner? To the tourist whose vacations where ruined? REMEMBER ** Defendant's actions causing injury to plaintiff must have been foreseeable.

causation in fact

An act or omission without which an event would not have occurred.

Disparagement of property

An economically injurious falsehood about another's product or property.

Superseding Cause

An unforeseeable, intervening act that occurs after Defendant's act that breaks the causal relationship between Defendant's act and Plaintiff's injury relieving Defendant of liability. If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff's injuries Example: Derrick, while riding his bicycle, negligently hits Julie, who is walking on the sidewalk. As a result of the impact, Julie falls and fractures her hip. While waiting for help, a small aircraft crashes and explodes nearby. Some of the debris hits Julie causing severe burns

Causation

Another element necessary in a negligence action is causation. If a person breaches a duty of care and someone suffers an injury, the wrongful act must have caused the harm for it to constitute the tort of negligence.

Liz enters a Crown Market, slips on a wet floor, and sustains injuries as a result. If there was no sign warning that the floor was wet when Liz slipped, the owner of Crown Market would be liable for damage

A court would hold that the business owner was negligent because the owner failed to exercise a reasonable degree of care in protecting the store's customers against foreseeable risks about which the owner knew or should have known. That a patron might slip on the wet floor and be injured was a foreseeable risk, and the owner should have taken care to avoid this risk or to warn the customer of it (by posting a sign or setting out orange cones, for instance).

assumption of risk

A defense to negligence that bars a plaintiff from recovering for injuries or damage suffered as a result of risks that were known and voluntarily assumed. Requirements of defense: Plaintiff has adequate notice and understanding of the risks associated with an activity. Plaintiff knowingly and willingly engages in the act anyway. Frequently asserted when plaintiff is injured during a recreational activity. Applies to spectators and bystanders

Paslgraf v. Long Island RR Co

Paslgraf v. Long Island RR CoAs NY (1928)Palsgraf (plaintiff) was standing on a platform owned by the Long Island R.R. (railroad) (defendant).One was carrying a package which, unbeknownst to anyone on the platform, contained fireworks. The man dropped his package. It fell to the rails and exploded, causing several scales at the other end of the platform to dislodge and injure Palsgraf. She brought suit against the railroad for negligence. The trial court granted judgment for the plaintiff, and the appellate division affirmed. The railroad appealed. A defendant is only liable for negligence if he owes a legal duty to the plaintiff and breaches that duty, and if the resulting harm was reasonably foreseeable.

Other Applications of Strict Liability

Persons who keep wild animals, for instance, are strictly liable for any harm inflicted by the animals. A significant application of strict liability is in the area of product liability—liability of manufacturers and sellers for harmful or defective products.

business invitees

Persons, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes.

Malpractice

Professional misconduct or the lack of the requisite degree of skill as a professional. Negligence on the part of a professional, such as a physician, is commonly referred to as malpractice.

The Duty of Professionals

Professionals—such as physicians, dentists, architects, engineers, accountants, and lawyers—are required to have a standard minimum level of special knowledge and ability

Duty to Warn Business Invitees of Risks.

Retailers and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect these business invitees. EX: requires storeowners to warn business invitees of foreseeable risks, such as construction zones and wet floors

If you carelessly bump into a passerby, who stumbles and falls as a result, you may be liable in tort if the passerby is injured in the fall.

The Injury Requirement and Damages

Foreseeability

The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event. Whether an act is foreseeable is generally considered a matter of "fact" determined by the reasonable person standard (jury).i.e., a tenant slips on a wet stairs.

Nicholas Mora worked for Welco Electronics, Inc., but had also established his own company, AQM Supplies. Mora used Welco's credit card without permission and deposited more than $375,000 into AQM's account, which he then transferred to his personal account. Welco sued. A California court held that Mora was liable for conversion.

The court reasoned that when Mora misappropriated Welco's credit card and used it, he took part of Welco's credit balance with the credit-card company.

Why would a superseding cause relieve a tort defendant of liability?

The defendant could not have reasonably foreseen the event.

duty of care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence.

negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

Conversion

Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another.

Which of the following defenses to negligence is used to assign liability proportionately to the level of harm from each party's own conduct?

comparative fault

When a defendant faces a negligence lawsuit, what defenses are available? Choose 3 answers.

contributory negligence assumption of risk comparative fault

The Duty of Landowners

expected to exercise reasonable care to protect persons coming onto their property from harm.

Obvious Risks Example

During a trip to a Costco warehouse store in Nevada, Stephen Foster tripped and fell over a wooden pallet and sustained injuries. A Costco employee who was restocking the shelves had placed the pallet in the aisle without any barricades. When Foster sued Costco for negligence, Costco argued that it had not breached its duty by failing to warn customers because the pallet was open and obvious. A lower court agreed and granted a summary judgment in Costco's favor, but the Supreme Court of Nevada reversed. The court held that the open and obvious nature of a dangerous condition does not automatically relieve a business owner from the general duty of reasonable care. Every situation is different. Therefore, Foster was entitled to proceed to trial and argue that Costco should have used barricades or warnings to protect customers.

Which of the elements required to prove negligence involve the reasonable person standard? Choose 2 answer choices.

Duty of Care Breach of duty of care.

Monica hosts a Super Bowl party at which Brett, a minor, sneaks alcoholic drinks. Monica is potentially liable for damages resulting from Brett's drunk driving after the party, even if she was not negligent in serving the alcoholic beverages.

Example of Dram shop Acts

For instance, a car dealer would have difficulty attracting customers if competitors publish a notice that the dealer's stock consists of stolen automobiles.

Example of slander of title

Obvious Risks May Be an Exception.

For instance, a business owner does not need to warn customers to open a door before attempting to walk through it. Other risks, however, may seem obvious to a business owner but may not be so to someone else, such as a child. In addition, even an obvious risk does not necessarily excuse a business owner from the duty to protect customers from foreseeable harm.

The business owner also has a duty to discover and remove any hidden dangers that might injure a customer or other invitee.

Hidden dangers might include uneven surfaces or defects in the pavement of a parking lot or walkway, or merchandise that has fallen off a store shelf.

For a tort to have been committed, the plaintiff must have suffered a legally recognizable injury.

If no harm or injury results from a given negligent action, there is nothing to compensate—and no tort exists.

Juan walks up to Maya and Juan carelessly bumps into Maya falls and breaks an arm as a result

Juan's action will constitute negligence. In either situation, Juan has committed a tort..

promixate cause

Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability.

Bogenberger v. Pi Kappa Alpha Corporation, Inc.

NIU frat hazed a pledge until he passed out and died from alcohol poisoning. His father filed a complaint on the basis of negligence. The court dismissed the complaint. A state intermediate appellate court reversed the dismissal. The defendants appealed to the Illinois Supreme Court. The supreme court affirmed to decision of the appellate court's reversal of the trial court's dismissal.

A business landowner has a duty to reasonably maintain his or her property for safety. When the business invites guests or customers onto its premises, it has a duty to:

warn invitees of and reasonably protect them from a foreseeable risk of harm or danger from something on the premises.

To meet the element of intent, a plaintiff must prove that the defendant:

knowingly committed the act or knew with substantial certainty that his or her actions would result in the consequences.

Good Samaritan statutes

someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence

In a negligence action, a plaintiff may seek an award for compensatory damages as a result of which of the following? Choose 3 answers.

the loss of a spouse's companionship actual missed days at work medical bills

in torts involving negligence

the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur.

Conversion can occur even when people who possess the goods of others mistakenly believe that they are entitled to the goods.

- good intentions are not a defense against conversion

Identify the five elements of negligence.

1. Duty. The defendant owed a duty of care to the plaintiff. 2. Breach. The defendant breached that duty. 3. Causation in fact. The plaintiff's injury would not have occurred without the defendant's breach. 4. Proximate causation. The connection between the defendant's breach and the plaintiff's injury is foreseeable and therefore justifies imposing liability. 5. Damages. The plaintiff suffered a legally recognizable injury.

In determining whether the duty of care has been breached, courts consider several factors:

1. The nature of the act (whether it is outrageous or commonplace). 2. The manner in which the act was performed (cautiously versus heedlessly). 3. The nature of the injury (whether it is serious or slight).

Defenses to Negligence (Affirmative Defenses)

Assumption of Risk. Superseding Intervening Cause. Contributory or Comparative Negligence

What conduct contitutes conversion?

Conversion is the civil side of crimes related to theft, but it is not limited to theft. Even if the rightful owner consented to the initial taking of the property, so there was no theft or trespass, a failure to return the personal property may still be conversion.

Courts ask two questions for causation:

Is there causation of fact? Was the act the proximate or legal cause of the injury?

Juan walks up to Maya and intentionally shoves her. Maya falls and breaks an arm as a result. In this situation,

Juan has committed an intentional tort (assault and battery).

strict liability

The legal responsibility for damage or injury even if you are not negligent Liability is based on abnormally dangerous activities

Which of the elements must a plaintiff prove to prevail in a negligence lawsuit?

The plaintiff must address all of the elements.

slander of title

The publication of a statement that denies or casts doubt on another's legal ownership of property, causing financial loss to that property's owner.

slander of quality (trade libel)

The publication of false information about another's product, alleging that it is not what its seller claims.

reasonable person standard

The standard of behavior expected of a hypothetical "reasonable person." It is the standard against which negligence is measured and that must be observed to avoid liability for negligence.

Chen borrows Mark's iPad Pro to use while traveling home from school for the holidays. When Chen returns to school, Mark asks for his iPad Pro back. Chen tells Mark that she gave it to her little brother for Christmas. In this situation, can Mark sue Chen for conversion?

Yes mark can sue Chen for conversion. Chen will have to either return the iPad Pro or pay damages equal to its replacement value.

What does the reasonable person standard impose on a person in a negligence lawsuit?

a duty to act as a reasonable person would in the same circumstances

It is the intent to do an act that is important in tort law, not the...

motive behind the intent.