Negligence & Strict Liability

Reasonable Person: Superior Skill or Knowledge

--Medical, Legal, Engineer, Scientist --Persons who are qualified, practice profession require SPECIAL SKILL required to use same care, skill of professional --if they have greater skill than common profession person, then greater degree of skill MALPRACTICE: superior skill being accused or negligence

Harm

-EASIEST element of Negligence -No Proof of Harm, No Negligence -Must Prove Defendant Negligent Conduct PROXIMATELY caused Harm

Palsgraf vs. Long Island Railroad

-Guy trying to get on train -Train pulls away -3 employees go help him -They push him on -Drops package with Fireworks -Palsgraf standing next to scale-firework hit and falls on him NOT FORESEEABLE that pushing guy would not be reasonably safe -Train Station NOT liable

Palumbo vs. Nikirk

-Mailman -Dog bites mailman -is owner liable? -what kind of dog? Was non dangerous and hadn't bitten before NOT LIABLE

Negligent Infliction of Emotional Distress

-NOT Intentional -Someone fails to act as Reasonable Person -Defendant isn't liable UNLESS PHYSICAL HARM -Ex: Son. & Mom: Dog owner is liable -Negligent Conduct causes SERIOUS EMOTIONAL disturbance & bodily harm -Close family member witnesses serious bodily injury

Strict Liability

-NOT about defendant -It's about ACTIVITY Were they involved in an abnormally dangerous activity?

Abnormally Dangerous (Ultra-Hazardous) Activity

-Need for society, but still dangerous -We don't ask if they did it intentionally, but were they crop dusting? -then LIABLE -Must have Insurance = Very Expensive --Collecting Water or Sewage --Storing Explosive or Flammables --Blasting or Pile Driving --Crop Dusting --Drilling for or Refining Oil --Emit noxious gases or fumes into settled community

Negligence

-OBJECTIVE STANDARD "Reasonable Person" --Conduct Creates UNREASONABLE RISK OF HARM --Liability due to FAILURE TO EXERCISE REASONABLE CARE under the circumstances for the SAFETY of another PERSON or THEIR PROPERTY, which failure PROXIMATELY CAUSES INJURY to PERSON or DAMAGE to their PROPERTY or both

Tort Reform

-Places a cap on damages -Businesses like Tort Reform -Individuals do NOT

Contributory Negligence

-Plaintiff contributes to their own harm Ex: Driver runs a stop sign, hit pedestrian but person walking outside of crosswalk -Every state diff standards for contributor negligence -Jury determines what % of fault is plaintiff & defendant -NC & AL have 1% RULE -In CONTRIBUTORY NEGLIGENCE jurisdiction, whether slight or extensive, prevents damages from defendant -If defendant had LAST CLEAR CHANCE to avoid injury, to plaintiff but did not, plaintiff negligence does not bar recovery of damage

Ryan vs. Friesenhahn

-Underage kids of house, parents said to drink there guest drank, minor, drove home & killed -Victim's family sued host house -Negligent

Defenses of Negligence

1. Contributory Negligence 2. Comparative Negligence 3. Assumption of Risk

Elements of Negligence

1. DUTY OF CARE 2. BREACH OF DUTY 3. FACTUAL CAUSE: PROOF OF HARM 4. HARM- what was harm? 5. PROXIMATE CAUSE (Scope of Liability) Harm Sustained was FORESEEABLE: MOST CHALLENGING TO PROVE

Assumption of Risk

1. EXPRESS Assumption of Risk --Sign Waiver Before Activity --Can't Sue --Contract, Terms must be Clear, Unequivocal -Written, Express Oral Agreement, Implied-in Fact Contract 2. IMPLIED Assumption of Risk --Action, Circumstance --Based on Situation --Can't Sue if you get hit by baseball at a game= Implied by Action NOTE: People who imperil themselves attempting to RESCUE their own or others' prop not assuming risk voluntarily

Comparative Negligence or Comparative Fault

1. PURE Comparative Negligence -whatever % at fault, must pay that amount --damages divided betw parties in proportion to degree of fault 2. MODIFIED Comparative Negligence --if plaintiff 51% at fault, defendant pays nothing PA is 51%!!

Klein vs. Pyrodyne Corporation

Co shot fireworks Tons of safety precautions but someone got hurt --They are LIABLE just bc used fireworks

Duty to Act

Ex: See blind person slowly walk toward cliff --THERE IS NO DUTY TO ACT? - If person at risk other than conduct of person, even if person in position to help --Special Relationships 1. Common Carrier/Passengers 2. Innkeeper/Guests 3. Employer/Employee 4. School/Student 5. Landlord/Tenants 6. Business/Customer 7. Parents/Children

If negligence of the plaintiff and negligence of the defendant proximately caused the injury and damage sustained by the plaintiff, the plaintiff can recover some damages in those states where contributory negligence is still recognized.

False

Iannelli vs. Burger King

Family having dinner Group of teens being loud Dad goes over, says calm down Teen beats up w/chair Dad sues BK for Negligence Cashier witnessed, BREACH OF DUTY Vicarious Liability

Invitee

HIGHEST STANDARD OF CARE Property for BUSINESS PURPOSE or open to PUBLIC -EX: Real Estate Agent, Contractor, Delivery Service, Customer, Employee -Person INVITED upon land as a member of public or a business purpose -Possessor of land is under duty to exercise reasonable care to protect invitees AGAINST DANGEROUS conditions they are UNLIKELY TO DISCOVER -Liability extends not only to those conditions of which possessor ACTUALLY KNOWS but also those of which would DISCOVER BY THE EXERCISE OF REASONABLE CARE -Business should INSPECT PREMISES REGULARLY to detect any dangerous conditions, either REMEDY the danger or POST PROMINENT WARNINGS

Reasonable Person: Children

If CHILD (<18) engage in function MEANT FOR ADULTS will be TREATED AS ADULT --16 year old -- driver's license --using fire arm --get a job --operate boat, airplane Compare to actions REASONABLE CHILD IF ACTIONS OF CHILD--same age, intelligence experience

Trespasser

LOWEST STANDARD OF CARE -EX: If there's something UNINTENTIONALLY dangerous at the store, trespasser gets hurt, we are NOT LIABLE -EX: If you aren't there, there is a bear trap, trespasser gets hurt, NOT LIABLE only if catch trespasser and not warn them -Person who enters or remains on the land of another WITHOUT OWNER'S CONSENT or legal privilege to do so -NOT LIABLE TO ADULT trespassers for their failure to maintain land in reasonable safe condition -CAN'T INTENTIONALLY inflict injury -AFTER DISCOVERING trespasser, possessor must exercise reasonable care for trespasser's safe & WARN of potentially dangerous conditions

Reasonable Person: Emergencies

Less time to plan What would reasonable person done in same emergence? You can't initiate the emergency --Calls for immediate action, no time for deliberation --Failure to anticipate emergency may constitute negligence

Proximate Cause (Scope of Liability)

Only liable for what was FORESEEABLE -Companies love Proximate Cause bc it LIMITS LIABILITY -Liability has been limited to those harms that result from risks that made the defendant's conduct tortious -Foreseeability ---reasonable person of ORDINARY INTELLIGENCE should have anticipated danger created by negligent act or omission --plaintiff must have been one whom defendant could reasonably expect to be injured by negligent act

Duties of Possessors of Land

POSSESSOR: Leasing Owning: Bought Duty of Care that is REASONABLY SAFE EX: Reading Terminal Market: transfers to each store that you pass by -Right of possessors of land to use that land for their own benefit and enjoyment is limited by their duty to do so in a reasonable manner -Possessors CANNOT cause UNREASONABLE RISKS to HARM OTHERS -Must EXERCISE REASONABLE CARE to protect others who are on property

Defenses of Negligence

See Chart in Notes

Duties of Possessors of Land

See Chart in Notes

All conversions of personal property are trespasses, but not all trespasses to personal property are conversions

True

Comparative negligence has replaced the contributory negligence doctrine in most states.

True

T/F to be held liable for negligence the likelihood that your conduct or action would cause an injury must be foreseeable to a reasonable person

True

The greatest tort risk involved in business today is

Vicarious Liability

Licensee

WITH PERMISSION "FRIENDS & FAMILY" EX: Belle is licensee in every part of castle. When she goes to West Wing; she's trespasser. -Person who is PRIVILEGED TO ENTER or remain on land only by virtue of the lawful possessors consent -WILL BECOME TRESPASSER if enter a portion of land to which they are NOT INVITED or remain on land after invitation expired -Possessor MUST WARN licensee of dangerous activities & conditions 1. Possessor has KNOWLEDGE OR REASON to know and 2. Licensee DOES NOT and NOT LIKELY TO DISCOVER

Keeping of Animals

Were they on someone else's prepay when they hurt someone or damage property? --In general, owners or possessors of animals EXCEPT dogs & cats are subject to STRICT LIABILITY for any physical harm animals cause trespassing on property of another NON-TRESPASSING ANIMALS --Allowed to be there --Are they wild or domestic? --if wild, you strictly liable --Domestic is liable if hurt someone else before --dog breed known to be dangerous--STRICTLY LIABLE

20. Perry is injured on the job at the factory where he works. He files a workers' compensation claim against his employer. The liability of the employer under the workers' compensation statute is :a. comparative. b. strict. c. contributory. d. negligence per se.

b

31. Andrew negligently hit a dog, which lay stunned in the street for a moment and then ran toward Bill, a bystander, and bit him. a. The dog's action is a foreseeable cause of harm .b. The dog's action is a superseding cause of harm .c. Andrew will be liable to Bill, because the dog's behavior is a natural consequence of the situation caused by Andrew's negligence. d. Two of the above, (b) and (c).

b

The intentional dispossession or unauthorized use of the personal property of another is known as: a.conversion. b.trespass to personal property. c.fraud. d.stealing.

b

By law, all apartment buildings in Mary's state must have smoke alarms in the ceilings. If Marysuffers smoke inhalation because the smoke alarm in her apartment building was not yet installed and Marysues the owner for negligence, Mary would have to prove: a. a duty existed toward her. b. a breach of that duty .c. injury and causation. d. All of the above.

c

30. While driving his car five miles over the speed limit, Carl struck Darla, who was jaywalking across the street. When the case came to trial, the jury determined that Carl was 60% negligent and that Darla was 40% negligent. Darla's injuries are $10,000. This accident occurred in a state following the comparative negligence theory of recovery .a. Darla will recover $10,000 .b. Darla will not recover anything.c . Darla will recover $6,000. d. Darla will recover $4,000.

c.

Les, a teenager, has the permission of Harold to walk across his yard on the way to school. Les now brings twenty of his friends across the yard, and they stop to play ball. a.Les is not guilty of trespass to real property, because he had Harold's permission to cross the yard. b.Les's friends are not guilty of trespass to real property, because they were with Les. c.Les is guilty of trespass to real property, because he walked across the yard. d.Les and his friends are guilty of trespass to real property, because they played ball in Harold's yard.

d.

Res Ipsa Loguitur

"THE THING SPEAKS FOR ITSELF" -Actions speak louder than words. Scenario SCREAMS negligence -Only question left is Who? -Permits jury to infer both Negligent conduct and Causation from the MERE OCCURRENCE of certain types of events -Applies when Accident causing plaintiff''s physical harm is a type of accident that ordinarily happens as result of Negligence of class or actors of which defendant is relevant member ex: Trains Colliding ex: Bricks Falling

Soldano v. O'Daniels

- Plaintiff's father shot & killed at saloon, patron came into Circle Inn & asked bartender to call police or let him use the phone, bartender refused - Plaintiff alleges: Circle Inn employee did not fulfill his legal duty to help Court held: - Harm was Foreseeable & Imminent, certainty of injury - While may not have had a duty to help, DID have a duty to NOT HINDER others from helping --> so yes, he was LIABLE

Petition of Kinsman Transit Co.

-Ship docked on side of Niagara river, not secured -Ship floats down river, no one is on it -Ship hits another ship -Both floating down -Hit bridge, created dam 5 miles flooding Company that did not secure FIRST SHIP, HELD LIABLE

Intervening Superseding Cause

-Someone is absolutely negligent BEFORE someone else gets hurt, they get hurt from something else -EX: Mechanic improperly puts tire on, customer pulls away, gets hit by another driver -Event or Act that occurs after the defendant's Negligent Conduct and with that negligence causes plaintiff's harm --If INTERVENING CAUSE deemed a SUPERSEDING CAUSE, relieves defendant of liability for that harm --INTERVENING CAUSE that is FORESEEABLE or normal consequence of defendant's negligence is NOT a SUPERSEDING cause

Negligence

1. MORE LAWSUITS allege Negligence than ANY OTHER SINGLE CAUSE OF ACTION 2. Person UNDER A DUTY to all others at all times to EXERCISE REASONABLE CARE for safety of other persons and their property 3. Conduct that BREACHES DUTY and creates UNREASONABLE RISK OF HARM --To determine UNREASONABLENESS, judge or jury may consider PROBABILITY that harm will occur, SERIOUSNESS of harm, UTILITY OF CONDUCT creating risk, COST TO TAKING PRECAUTIONS to reduce risk 4. Business liability insurance--if EMPLOYEE NEGLIGENT SO ARE YOU!

Duty to Act Part 2

Person's prior conduct creates continuing risk of physical harm, person has duty to exercise reasonable care to prevent or minimize harm --Ex: Person who begins a rescue by taking charge of another incurs duty to exercise reasonable cure--do not leave victim in worse position --Good Samaritan Statutes --Overdose Immunity Law --Parents & Employers owe duty of care to 3rd persons for FORESEEABLE RISKS that arise with scope of relationship--WARNINGS --Employers must exercise reasonable are in Hiring, Training, Supervising, Retaining Employees

Tim and his friend are playing catch in the back yard when Tim suddenly throws the ball over the fence into the neighbor's yard where it breaks a window. This is trespass to real property, even if Tim himself does not go onto the property to get the ball.

True

37. In which of the following situations would a court be likely to find an affirmative duty to act? a. Where a pedestrian witnesses an auto accident in which one of the drivers is injured. b. Where an airline attendant sees one passenger threaten another passenger .c. Where the driver of a car sees a two-year-old toddler wandering in the middle of a busy street. d. All of the above are situations where legally there is an affirmative duty to act.

b

Oscar, who was driving too fast for conditions, collided with a truck carrying explosives. Thetruck was unmarked, so Oscar had no way of knowing what it contained. The collision caused an explosion,which shattered glass in a building a block away. The glass injured Ida, who was working inside thebuilding. John, who was walking down the street near the site of the collision, was seriously burned as aresult of the explosion. a. Oscar's negligent driving is the proximate cause of Ida's injury .b. Oscar's negligent driving is the proximate cause of John's injury. c. Both Ida and John are within the zone of danger of the collision .d. All of the above.

b.

Infliction of emotional distress must be _____ and _____ resulting in severe emotional distress to another, and must be so that it exceeds the bounds of decency accepted by society in order to be actionable.

extreme; outrageous

T/F jimmy was playing his guitar really low. it caused a short circuit which caused a fire. The fire was Jimmy's fault, and he should pay the damages

false: Jimmy was the actual cause, but he was not the proximal cause

Those who enter a retail premises are called business ________. Storeowners must warn business invitees of ________ risks. A landowner has a duty to discover and remove any ________ dangers to customers or other invitees. When risks are ________, owners need not warn of them.

invitees; foreseeable; hidden; obvious

Emerson and Chase are drag racing. Chase hits callie and callie wants to sue. Callie's best theory to obtain a judgement is

negligence per se

A jury finds damages in a negligence case of 1 million dollars and finds the Plaintiff is liable for 10% of damages. The Defendant is liable for 90% How much is the plaintiff rewarded

nothing in a contributory negligence state (in a comparative negligence no matter what, the defendant will be the only one paying the plaintiff)

T/F Bubba has a pitbull. If you are attacked by his dog, you are able to recover damages to your injuries under strict liability because he is keeping a wild animal

true: it is domesticated, but if its predisposed to dangerous habits, its considered a wild animal

Reasonable Person: Physical Disability

Actions compared to reasonable person w/SAME DISABILITY --Conduct during period of SUDDEN INCAPACITATION or LOSS OF CONSCIOUSNESS resulting from physical illness is NEGLIGENT ONLY if sudden incapacitation or loss of consciousness was reasonably FORESEEABLE to actor

Tim and Steve are roughhousing in Tim's parents' front yard when Steve intentionally pushes Tim onto the neighbor's property. a.Tim is a trespasser .b.Steve is a trespasser. c.Tim and Steve are both trespassers. d.None of the above.

B

Dram Shop Acts

If you sell alcohol to visible intoxicated person, they go hurt someone else, you are STRICTLY LIABLE

Joint & Several Liability

Joint: TOGETHER OR BOTH pay for damages Several: Plaintiff can require EITHERr defendant to pay If PARTNERSHIP, BOTH get Sued -When problem of causation arises from carelessness of 2 or more individuals -Tort law makes each individual jointly and separately liable for entire judgement

Reasonable Person: Violation of Statute

May be established by LEGISLATION or ADMINISTRATIVE REGULATION --Some statues expressly impose Civil Liability on Violators --NEGLIGENCE PER SE: Violation demonstrate Negligent Conduct -EX: When building a building, if you are not up to code, someone gets hurt, negligent --Courts may adopt requirements of statue as standard of care if statute designed to protect against type of accident that defendant's conduct caused, victims is within class of persons that statute is designed to protect --Compliance w/Statue does NOT prevent finding Negligence if Reasonable Person would have taken addt'l precautions

Reasonable Person: Mental Disability

Mental or Emotional Disability is NOT considered at all, actions are COMPARED TO REASONABLE PERSON w/no mental disability --Hard to Prove --Voluntary Intoxication is no excuse

Willful & Wanton Negligence

NEGLIGENT & RECKLESS Classic Example: Drinking & Driving --Intentional or act must have been committed under circumstances exhibiting reckless disregard for safety of others such as failure after knowledge of impending danger to exercise ordinary care to prevent it or failure to discover danger thru recklessness or carelessness when it could have been discovered by exercise of ordinary care --PUNITIVE DAMAGES

Strict Liability

STANDARD OF CARE DOES NOT MATTER --NOT based on INTENT OR NEGLIGENCE of defendant --Based on NATURE OF ACTIVITY in which defendant is engaging --LIABILITY EVEN IF defendant EXERCISED UTMOST CATE -ABNORMALLY DANGEROUS conditions --Keeping animals

Factual Cause

THIRD ELEMENT EX: What was the only reason why the person was hit? --Person ran a red light -Liability of Negligent conduct of a defendant requires conduct in fact caused harm to plaintiff "BUT-FOR TEST" -Person's conduct cause of event if event WOULD NOT HAVE OCCURRED "BUT FOR" person's negligent conduct -When HARM WOULD NOT HAVE OCCURRED absent the conduct -if MULTIPLE ACTS exists, each of which along would have been a factual cause under the "BUT FOR TEST" of the physical harm at the same time, each act is regarded as factual case of harm

Rick's driveway has potholes. He has been thrown from his bike several times because of them. If Rick invites his biking friends for a barbecue, what must he do to escape liability for any harm to them?

Telephone his friends to warn them about the potholes

Love vs. Hardee's Food Systems, Inc.

Woman goes in to go to the bathroom slips, falls bc floor is wet Sues Hardee's How long floor wet" Reasonable, once an hour to check No documentation of when was last time checked Hardee's liable

Liebeck vs. McDonald's

Woman spills hot coffee on herself in car driving got 3rd degree burns -Product Liability = after exam

25. Violation of a statute designed to protect underage, unlicensed drivers, as well as innocent third parties, from the consequences of juvenile car theft and "joy riding" by prohibiting car owners from leaving the keys in their cars if the cars are unattended, is likely to be characterized as: a. negligence per se. b. res ipsa loquitur .c. contributory negligence. d. assumption of risk.

a

Reasonable Person Standard

A "Reasonable Person" is ALWAYS CAREFUL -DUTY OF CARE measured by DEGREE OF CAREFULNESS that reasonable person would exercise in given situation --Fictitious individual who is always careful, PRUDENT, never negligent

11. Cal sprayed pesticide on his crops in a very careful manner on a windless day. Nevertheless, some of the pesticide spray fell on his neighbor's side of the fence and contaminated the feed for the chickens. The chickens died, and the neighbor sues. What is the likely result? a. Cal is not liable because he was not negligent in his spraying operation .b. Cal is not liable because the neighbor assumed the risk of damage to the feed by placing it so close to the fence. c. Cal is liable because spraying pesticides is an abnormally dangerous activity .d. Cal is not liable for the damage because of contributory negligence.

c

34. To which of the following does a property owner owe the highest duty of care? a. A stranded motorist who comes onto the property to seek help b. A social guest and close friend who have come to the house for a party c. A client who has come to an accountant's office in a building which the accountant owns d. A neighbor who comes over uninvited to use a backyard lounge chair

c

36. A ninety-year-old patient walked away from a nursing home and wandered onto some nearby railroad tracks. Once on the tracks, the patient stumbled and sprained his ankle. A few minutes later a train approached. The engineer saw the man on the track and could have stopped, but the train's brakes were defective. As a result, the train hit and killed the man. His family is suing the railroad for negligence. a. The patient has assumed the risk of wandering onto the railroad tracks .b. Because the patient was contributorily negligent, most states would hold that the railroad has no liability .c. In states that follow the contributory negligence rule, the train had the last clear chance to avoid the accident, so the patient's negligence does not bar his estate's recovery. d. The train's striking of the man was an intervening cause, so the railroad company was strictly liable.

c

Joe intentionally pushed Bill into a fence negligently erected by Sam around Sam's swimmingpool. The fence caved in and Bill nearly drowned. Under the Second Restatement, who is liable? a. Sam, because of his negligent conduct. b. Sam, because Joe's conduct would be foreseeable .c. Joe, because of his intentional intervening conduct. d. Sam and Joe, because they both contributed to the harm.

c

William, who is a waiter, is injured when an unopened bottle of cola explodes in his handwhile he is putting it into the restaurant's cooler. If William wants to sue the bottling company for hisinjuries: a. he will lose, because it will be impossible for him to prove that the bottle wasoverpressurized by the bottler. b. he will lose, because the bottling company has no duty to him. c. he will probably win if the court allows him to use the res ipsa loquitur doctrine. d. he will win based on the last clear chance rule.

c

The difference in the two types of causation are that __________ pertains to whether the injury occurred because of the Defendant's act or would the injury have occurred anyway, and __________ pertains to when the causual connection between the act and injury is strong enough to impose at least a contributing liability.

causation in fact; proximate cause

29. Arthur negligently stopped his car on the highway. Betty, who was driving along, saw Arthur's car in sufficient time to attempt to stop. However, Betty negligently put her foot on the accelerator instead of the brake and ran into Arthur's car. a. Arthur's contributory negligence will prevent his recovery from Betty in all jurisdictions. b. Betty had the last clear chance to avoid the accident and will bear full legal responsibility for it. c. Arthur has assumed the risk of the accident. d. Because both parties were negligent, in a state that follows the comparative negligence doctrine, both parties will share the liability for their injuries.

d

Stella goes to Ranger's Department Store to look for clothes. The store is in the process ofremodeling, and there is a lot of clutter in the aisle. Stella trips over the clutter and breaks her leg. Whatstandard of care does the store have toward Stella under the circumstances? a. None, because she came to the store voluntarily. b. The store owes her a duty of only ordinary care, because she is a trespasser. c. Because she is a licensee, the store must warn her of hazards of which the store knows butwhich Stella is not likely to discover. d. Because Stella is a business visitor, the store must exercise reasonable care to protect heragainst dangerous conditions she is unlikely to discover.

d

Which of the following is correct with respect to the reasonable person standard? a. It makes allowance for mental deficiency. b. It makes allowance for physical disability. c. It applies an individualized test to children that takes into consideration the child's age, background and experience. d. Both (b) and (c) e. All of the above

d

Which of the following is/are considered in determining the application of the reasonable person standard? a. physical disability b. superior skill or knowledge c. emergency circumstances d. all of the above

d

Mark is out sailing in his boat one evening when he hears a young girl crying for help in the lake. Which of the following must be true? a. Mark must help the girl or he will be liable for negligence b. Mark must help the girl only if he knows her c. Mark must help the girls if he is the girl's uncle d. Mark must help the girl if he begins to rescue her and moves her to a position farther from the shore

d.