Business Law Chapter 7

Contributory Negligence

Contributory negligence is a doctrine of common law that if a person was injured in part due to his/her own negligence the injured party was barred from recovering any damages (money) from another party who was claimed to have caused the accident. Under this rule, a severly injured person who was only minimally negligent could not win in court against a grossly negligent defendant. The harsh results from the application of the rule has led some juries to ignore the rule and most states have adopted a comparative negligence test in which the relative percentages of negligence by each person are used to apportion liability for damages.

Trespassers

A trespasser enters the land without its possessor's consent and without any other privilege. Trespassers are not owed a duty for their safety.

Special Duties

When performing their professional duties, for example, professionals such as doctors, lawyers, and accountaints generally must exercise the knowledge, skill, and care ordinarily possessed and employed by members of the profession.

Property Damage

harm to the plaintiff's real estate or a personal property item such as a car-is another recognized type of injury for which compensotory damages are recoverable in negligence litigation

Proximate Cause

A proximate cause is one that is legally sufficient to result in liability. It is an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. It is the cause that directly produces an event. The event would not have occurred but for the cause. This is also referred to as direct cause, efficient cause, initial cause, first cause, legal cause, producing cause, primary cause or jural cause. Proximate cause is used in tort law to link negligence to liability for an injury caused by an accident. The accident and injury must be shown to be the natural and probable result or consequence of the acts of negligence alleged by the attorneys to have been committed. The attorney for the plaintiff must prove that any negligence of which the defendant is accused proximately caused the accident and his or her injuries. A defense attorney must at the same time prove that any contributory negligence of the plaintiff proximately caused the accident and any injuries of which the plaintiff complains. There may be more than one proximate cause of an accident. Multiple acts of negligence by different people may concur to cause the same accident, yet each may be deemed to be a proximate cause of the accident. Sometimes there is an intervening cause which comes after the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of the defendant's liability. If this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all.

Actual Cause

Actual cause refers to a cause or factor without which the event could not have occurred. It is also termed as but for cause or cause in fact or factual cause. The but-for test is often used to determine actual causation. But for test is one of several tests to determine if a defendant is responsible for a particular happening. The test simply asks, "but for the existence of A, would B have occurred?" If the answer is yes, then factor A is an actual cause of result B.

Assumption of Risk

Assumption of the risk is a defense raised in personal injury lawsuits. The defense claims that the plaintiff knew that a particular activity was dangerous and thus bears all responsibility for any injury that resulted. In order to show the risk was assumed, the danger assumed must be obvious or the nature of the activity causing injury must be inherently dangerous. Assumption of the risk may be proven by a clause in a contract stating the existence of the danger and the waiver of liability of the defendant for injuries caused, but may be shown by other evidence. Once proven, assumption of risk may bar the plaintiff from any recovery for injuries.

Public Invitees

are invited to enter property that is held open to the public example parks, swimming pools, government facilities, parks

Comparative Negligence

Comparative negligence is a rule of law applied in accident cases that assigns responsibility and damages based on the negligence of every party directly involved in the accident. Comparative negligence can reduce the award of damages to the plaintiff in proportion to his/her fault. Comparative negligence is a standard that has been adopted in some states, however, some states still use contributory negligence which denies recovery to any party whose negligence has added to the cause of the accident in any way. Contributory negligence can lead to harsh results for the slightly negligent plaintiff in some cases, and therefore, has led some states to adopt comparative negligence in order to avoid barring the plaintiff from any recovery at all.

The Causation Link

Even if the defendant has breached a duty and the plaintiff has suffered actual injury, there is no liability for negligence without the necessary causation link between breach and injury. The causation question involves three issues: 1) was the breach an actual cause of the injury? 2) was the breach proximate cause of the injury? 3) What was the effect of any intervening cause arising after the breach and helping to cause the injury?

Foreseeable

Foreseeable is a concept used in tort law to limit the liability of a party to those acts which carry a risk of foreseeable harm, meaning that a reasonable person would be able to predict or expect the ultimately harmful result of their actions. Under negligence law, the duty to act reasonably to avoid foreseeable risks of physical injury extends to any person. In contract law, the concept of foreseeability is used to limit the award of special or consequential damages to those that are the predictable consequence of the breach of contract.

Negligence Defenses

If the negligence of the plaintiff is partially responsible for his harm, his recovery from the defendant may be reduced or barred. This is called contributory or comparative negligence. In a small minority of states, the common law contributory negligence rule is followed which states that if the plaintiff contributes to his harm, he cannot recover from the defendant. In most states, this rule has been rejected because it has been regarded as unjust in situations where the plaintiff's negligence was slight in comparison to the defendant's negligence. Comparative negligence provides that there should be a comparing of the negligence of the plaintiff and the defendant. This is the rule followed in most states. The negligence of the plaintiff would not bar recovery in these states, but would only reduce the plaintiff's recovery to the extent that the harm was caused by his own negligence. For example, if the jury decides that the plaintiff has sustained damages of $100,000.00, but that his own negligence was one-fourth the cause of the damage, the plaintiff would only be allowed to recover $75,000.00. Some states combine the contributory and comparative negligence rules and refuse to allow the plaintiff to recover anything if his negligence is more than 50% of the cause of the harm. Assumption of risk is a defense which a defendant can raise which basically states that the plaintiff has knowingly assumed the risk of the harm that was caused. A fan hit by a basketball at a basketball game has assumed the risk of getting hit because it is a known danger that basketballs are thrown into the stands by players (when another player fails to make the catch) from time to time. However, the doctrine of assumption of risk has been watered down by the doctrine of comparative negligence. For example, if a plaintiff drives an automobile knowing his brakes are defective and he fails to stop at a railroad crossing and is therefore hit by a train, comparative or contributory negligence would be more appropriate than assumption of risk, although the plaintiff could arguably be deemed to have assumed the risk of an accident by driving with defective brakes that he knew to be defective. Kendra took part in a friendly game of touch football. She had played before and was familiar with football. Michael was on her team. In the course of play, Michael bumped into Kendra and knocked her to the ground. He stepped on her hand, causing injury to a little finger that later required its amputation. She sued Michael for damages. He defended on the ground that she had assumed the risk. Kendra claimed that assumption of risk could not be raised as a defense because the state legislature had adopted the standard of comparative negligence and she was not negligent in taking part in the game. There was nothing in the fact of participation in the game that would have alerted a reasonable person to the fact that such an injury was foreseeable. However, having taken part in the game, she voluntarily assumed risks of normal harm that could reasonably be associated with the game. Her experience with the game showed that she knew what could be expected, and there was no proof that the defendant acted recklessly or caused harm intentionally. That is, nothing went beyond the reasonable expectations of a reasonable person. Thus, the comparative negligence statute did not apply, and Kendra claim was barred by her assumption of risk.

Later Acts, Forces,or Events

In some cases, an act, force, or event occurring after a defendant's breach of duty may play a significant role in bringing about or worsening the plaintiff's injury. example foreseeable event

Intervening Causes

Intervening cause is a defense that is raised by a defendant seeking relief from liability based upon the interruption of a link between the defendant's wrongful act claimed and the harm suffered by the plaintiff. When an intervening cause exists that breaks the natural chain of events due to the subsequent act of another, the initial wrongdoer may be relieved of the responsibility for an injury that occurs. The intervening cause then assumes responsibility for the resulting injury. An intervening cause is an independent, foreseeable cause that is occurs after another cause in time in producing the result but does not interrupt the chain of causation. It is also called a supervening cause.

Invitees

Invitees are of two general types, the first of which is the "business visitor" who is invited to enter the property for a purpose connected with the possessor's business. Examples include customers, patrons, and delivery persons.

Duty of Reasonable Care

Negligence law rests on the premise that members of society normally should behave in ways that avoid the creation of unreasonable risks of harm to others.

Abnormally Dangerous Activities

Strict liability is a tort law concept that imposes liability for harm suffered without requiring proof of negligence. It is commonly used in product liability law. State statutes also may impose strict liability in other contexts, such as conditions or activities that are abnormally dangerous. Transporting explosives might be an example of such an activity for which strict liability is imposed. A few states have passed special statutes that impose strict liability for harm caused by domestic animals with no known dangerous propensities. Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness depending on the jurisdiction within which the claim is based. In a strict liabilty theory of liability, the degree of care exercised by the manufacturer is irrelevant, as long as the product is proven to be defective, they will be held liable for the harm resulting from the defect.

Strict Liability

Strict liability is a tort law concept that imposes liability for harm suffered without requiring proof of negligence. It is commonly used in product liability law. State statutes also may impose strict liability in other contexts, such as conditions or activities that are abnormally dangerous. Transporting explosives might be an example of such an activity for which strict liability is imposed. A few states have passed special statutes that impose strict liability for harm caused by domestic animals with no known dangerous propensities. Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness depending on the jurisdiction within which the claim is based. In a strict liabilty theory of liability, the degree of care exercised by the manufacturer is irrelevant, as long as the product is proven to be defective, they will be held liable for the harm resulting from the defect.

Res Ipsa Loquitur

Res ipsa loquitur is a Latin term meaning "the thing speaks for itself". It is a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and the accident would not have happened without negligence. The traditional elements needed to prove negligence through the doctrine of res ipsa loquitur include: 1. The harm would not ordinarily have occurred without someone's negligence 2. The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act 3. The plaintiff did not contribute to the harm by his own negligence. There has been some change in the modern application of the above elements. The "exclusive control" element has been softened in modern cases to a less strict standard, where the plaintiff must prove that other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence. The last element has also softened to a more comparative standard, so that if plaintiff was only 5% negligent in contributing to the accident, the minimal contributory negligence of the plaintiff won't bar a recovery.

Negligence

To recover for negligence a plaintiff must establish each of the following by a preponderance of the evidence Elements 1) that the defendant owed a duty of care to the plaintiff 2) that the defendant committed a breach of duty 3) that this breach was the actual and proximate cause of injury experienced by the plaintiff 4) Damages must be proven

Licensees

a licensee enters the property for her own purpose, not for a purpose connected with the possessor's business.

Personal Injury

also called "physical" or "bodily" injury-is harm to the plaintiff's body. plaintiffs who experienced personal injury and have proven all elements of a negligence claim are entitled to recover compensatory damages.

Causation of Injury

proof that the defendant breached a duty does not guarantee that the plaintiff will win a negligence case. The plaintiff must also prove that the defendant's breach caused her to experience injury.

Negligence Per Se

the defendant's violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff 1) was within the class of persons intended to be protected by the statue of other law 2)suffered harm of a sort that the statue or other law was intended to protect against.