CHAPTER 9: Negligence and Strict Liability

strict liability

Liability in which responsibility for damages is imposed regardless of the existence of negligence. Also called liability without fault.

compensatory damages

Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, etc.

1. the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm and 2. the plaintiff's failure was a contributing cause to the plaintiff's injury.

In Contributory negligence, The defendant must prove that

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In most states, proximate cause is determined by foreseeability. Proximate cause is said to exist only when both the plaintiff and the plaintiff's damages were reasonably foreseeable at the time the defendant breached his duty to the plaintiff. Thus, if the defendant could not reasonably foresee the damages that the plaintiff suffered as a result of his action, the plaintiff's negligence claim will not be sustained because it lacks the element of proximate causation.

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In negligence per se, A defendant who complies with legislative statutes, however, can still be held liable if a reasonable person would have exercised a more stringent duty of care toward the plaintiff. The legislative statutes are minimum, not sufficient, standards for behavior.

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In negligence per se, The plaintiff does not have to show that a reasonable person would exercise a certain duty of care toward the plaintiff. Instead, the plaintiff can offer evidence of the defendant's violation of the statute to establish proof of the negligence.

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In some cases, however, the courts hold that individuals have a duty to aid strangers in certain types of peril.For example, if Sam negligently hits Janice with his car and, as a result, Janice is lying in the street, Sam has a duty to remove her from that dangerous position.

modified comparative negligence

In some states, a defense whereby the defendant is not liable for the percentage of harm that he or she proves can be attributed to the plaintiff's own negligence if the plaintiff's negligence is responsible for less than 50 percent of the harm. If the defendant establishes that the plaintiff's negligence caused more than 50 percent of the harm, the defendant has no liability.

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In typical negligence cases, courts rarely award punitive damages, or exemplary damages, which are imposed to punish the offender and deter others from committing similar offenses. Instead, courts usually award punitive damages in cases in which the offender has committed gross negligence, an action committed with extreme reckless disregard for the property or life of another person.

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When an individual fails to maintain a duty of care to protect other individuals, negligence and strict liability may occur. - Allegations of negligence are made in a wide variety of circumstances.

superseding cause

is an unforeseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered. - allow the defendant to avoid liability because they are evidence that the defendant's breach of duty was not the proximate cause of the plaintiff's injuries.

Damages

A compensable loss suffered by the plaintiff.

pure comparative negligence

A defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove can be attributed to the plaintiff's own negligence. - the court determines the percentage of fault of the defendant. The defendant is then liable for that percentage of the plaintiff's damages.

Contributory negligence

A defense that allows the defendant to entirely escape liability by demonstrating any degree of negligence on the part of the plaintiff that contributed to the plaintiff's harm. - applies in cases in which the defendant and the plaintiff were both negligent.

Assumption of the risk

A defense that allows the defendant to escape liability by establishing that the plaintiff engaged in an activity fully aware that the type of harm he or she suffered was a possible consequence of engaging in that activity

Comparative negligence

A defense that allows the liability to be apportioned between plaintiff and defendant in accordance with the degree of responsibility each bears for the harm suffered by the plaintiff.

negligence per se , "negligence in or of itself"

A doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a defendant violated a statute that was designed to prevent the type of harm that the plaintiff incurred. - If the defendant's violation causes the plaintiff to suffer from the type of harm that the statute intends to prevent, the violation is deemed _________.

res ipsa loquitur

A doctrine that allows a judge or jury to infer that, more likely than not, the defendant's negligence was the cause of the plaintiff's harm even though there is no direct evidence of the defendant's lack of due care.

last-clear-chance doctrine

A doctrine used by a plaintiff when the defendant establishes contributory negligence. If the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent.

reasonable person standard

A measurement of the way members of society expect an individual to act in a given situation.

dram shop act

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

Good Samaritan statute

A 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 the aid. - attempt to encourage selfless and courageous behavior by removing the threat of liability

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Actual cause is sometimes referred to as "but-for" causation because the plaintiff argues that the damages she suffered would not have occurred but for (except because of) the actions of the defendant.

gross negligence

An act committed with extreme reckless disregard for the property or life of another person.

unfortunate accident

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

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Because the purpose of tort law is to compensate individuals who suffer injuries as a result of another's action or inaction, a person cannot bring an action in negligence seeking only nominal damages. Rather, a person must seek compensatory damages compensatory damages -Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, etc.

negligence

Behavior that creates an unreasonable risk of harm to others. - involve the failure to exercise reasonable care to protect another's person or property.

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If the court finds that (1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm and (2) the plaintiff's failure was a contributing cause of the plaintiff's injury, the defendant will not be liable for the plaintiff's injuries unless the plaintiff can prove that the defendant had the last opportunity to avoid the accident.

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Business owners need to be mindful when selecting employees to work for their companies. When an employee engages in unlawful actions, it is the business owner who may actually end up in costly litigation. Many companies utilize background checks, call references, and verify previous employment to safeguard themselves and their employees against potential injury and liability.F

1. Actual cause (cause in fact)—The determination that the defendant's breach of duty resulted directly in the plaintiff's injury. 2. proximate cause (legal cause)—the extent to which, as a matter of policy, the defendant will be held liable for the consequences of his actions.

Causation is the third element of a successful negligence claim, and it has two separate elements:

1. Contributory 2. Comparative negligence 3. Assumption of the risk

Defenses to Negligence

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

1. Duty 2. Breach of duty 3. Causation 4. Damages

Elements of Negligence: To prove negligence, a plaintiff must demonstrate:

Breach of duty

Failure to live up to the standard of care.

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Professionals have more training than ordinary people. Thus, when professionals are serving in their professional capacity, courts generally hold that they have a higher duty of care to clients than does the ordinary person. A professional cannot defend against a negligence suit by claiming ignorance of generally accepted principles in her or his field of expertise. Clients who feel that they have suffered damages as a result of a professional's breach of her duty of care can bring a negligence case against her. These actions are referred to as malpractice cases

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Proof of these three elements of res ipsa loquitur does not require a finding of negligence, however; it merely permits it. Once the plaintiff has demonstrated these three elements, the burden of proof shifts to the defendant, who must prove that he was not negligent to avoid liability.

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Proximate cause is defined in the majority of states as foreseeability of both the plaintiff and his or her injury, whereas in the minority of states proximate cause is the same as actual cause.

1. Good Samaritan statute 2. superseding cause

Special Defenses to Negligence

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The courts generally hold that businesses have a duty of care to protect their customers against foreseeable risks about which the owner knew or reasonably should have known. - Businesses and corporations are also obligated to provide products to consumers that are safe from foreseeable harm or injury. Failure to care for customers' safety can mean serious legal and financial repercussions for business owners and CEOs, especially if a company knowingly offers products or services that contain defects. - Sometimes it can be difficult to tell when there is a duty of care between a business and its customers.

Actual cause (cause in fact)

The determination that the defendant's breach of duty resulted directly in the plaintiff's injury.

1. It involves a risk of serious harm to people or property 2. it is so inherently dangerous that it cannot ever be safely undertaken 3. it is not usually performed in the immediate community. Instead of banning these activities, the law allows people to engage in such activities but holds them liable for all resulting harm.

The law holds an individual liable without fault when the activity in which she engages satisfies three conditions:

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The plaintiff has the burden of proving all four elements of a negligence case. Direct evidence of negligence by the defendant, however, is not always available.

Duty

The standard of care a reasonable person owes another

1. Express assumption of the risk 2.implied assumption of the risk

There are two types of "assumption of the risk" defense:

1.The event was a kind that ordinarily does not occur in the absence of negligence. 2. Other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated. 3. The indicated negligence is within the scope of the defendant's duty to the plaintiff.

To establish res ipsa loquitur in most states, the plaintiff must demonstrate that:

implied assumption of the risk

means that the plaintiff implicitly assumed a known risk.

1. pure comparative negligence. 2. modified comparative negligence.

most states have replaced the contributory negligence defense with either

Express assumption of the risk

occurs when the plaintiff expressly agrees (usually in a written contract) to assume the risk posed by the defendant's behavior.

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suppose Jonathan is driving on the highway when he suffers a stroke. Because of the stroke, he crashes into two other vehicles. He is not, however, liable for damages caused by the accident. Yet if Jonathan had some type of warning that the stroke was going to occur, he might be liable for the accident.

proximate cause (legal cause)

the extent to which, as a matter of policy, the defendant will be held liable for the consequences of his actions.

1. res ipsa loquitur 2. negligence per se.

two doctrines have been adopted by courts to aid plaintiffs in establishing negligence claims:

danger invites rescue doctrine.

when rescuers are injured while attempting to rescue the survivors, many courts will hold the defendant liable for their injuries