BUA 220 Ch.4 Pt.2

• The Duty of Professionals

If a professional violates her or his duty of care toward a client, the professional may be sued for malpractice, which is essentially professional negligence

• The Reasonable Person Standard

In determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances.

• The Duty of Landowners

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

• Foreseeablllty

Probably the most cited case on proximate cause is the Palsgraf case, the court addressed the following question: • Does a defendant's duty of care extend only to those who may be injured as a result of a foreseeable risk, or does it also extend to a person whose injury could not reasonably be foreseen?

o Negligence Per Se

negligence per se (per semeans "in or of itself"). Negligence per se may occur if an individual violates a statute or ordinance and thereby causes the kind of harm that the statute was intended to prevent.

• Causation

o Another necessary element in a negligence action is causation. o Courts Ask Two Questions

• Abnormally Dangerous Activities

o Courts apply the doctrine of strict liability in such cases because of the extreme risk of the activity o Because of the potential for harm, the person who is engaged in an abnormally dangerous activity—and benefits from it—is responsible for paying for any injuries caused by that activity.

• The Injury Requirement and Damages

o For a tort to have been committed, the plaintiff must have suffered a legally recognizable injury o To recover damages (receive compensation), the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest

• Other Applications of Strict Liability

o Persons who keep wild animals, for example, are strictly liable for any harm inflicted by the animals. o A significant application of strict liability is in the area of product liability o Liability here is a matter of social policy and is based on two factors: • 1.the manufacturer or seller can better bear the cost of injury because it can spread the cost throughout society by increasing prices of goods and services, and • 2.the manufacturer or seller is making a profit from its activities and therefore should bear the cost of injury as an operating expense.

• Special Negligence Doctrines and Statutes

o Res Ipsa Loquituro Negligence Per Seo Good Samaritan Statuteso Dram Shop Acts

• Defenses to Negligence

o There are three basic affirmative defenses in negligence cases • 1.assumption of risk, • 2.superseding cause, and • 3.contributory and comparative negligence

• Unintentional Torts (Negligence)

o occurs when someone suffers injury because of another's failure to live up to a requiredduty of care. o To succeed in a negligence action, the plaintiff must prove each of the following: • Duty. That the defendant owed a duty of care to the plaintiff. • Breach. That the defendant breached that duty • Causation. That the defendant's breach caused the plaintiff's injury. • Damages. That the plaintiff suffered a legally recognizable injury.

o Courts Ask Two Questions

• 1.Is there causation in fact? Did the injury occur because of the defendant's act, or would it have occurred anyway? Causation in fact can usually be determined by the use of the but for test: "but for" the wrongful act, • 2.Was the act the proximate cause of the injury? Proximate cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability

o Assumption of Risk

• A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. This is the defense of assumption of risk. • 1.knowledge of the risk and • 2.voluntary assumption of the risk.

Cyber Torts

• Liability of Internet Service Providers • The Spread of Spam

o Dram Shop Acts

• Many states have also passed dram shop acts, under which a tavern owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served by the bartender.

o Good Samaritan Statutes

• Most states have enacted what are called Good Samaritan statutes. Under these statutes, someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence

o The Duty of Care and Its Breach

• The basic principle underlying the duty of care is that people in society are free to act as they please so long as their actions do not infringe on the interests of others.

o Contributory and Comparative Negligence

• contributory negligence, a plaintiff who was also negligent (failed to exercise a reasonable degree of care) could not recover anything from the defendant. • contributory negligence, a plaintiff who was also negligent (failed to exercise a reasonable degree of care) could not recover anything from the defendant

Strict Liability

• strict liability, or liability without fault • Under the doctrine of strict liability, liability for injury is imposed for reasons other than fault. • Abnormally Dangerous Activities

o Res Ipsa Loquitur

• under the doctrine of res ipsa loquitur (meaning "the facts speak for themselves"), the courts may infer that negligence has occurred