Business Law Chapter 9

Duty

The standard of care a reasonable person owes to another. The plaintiff must first establish that the defendant owes a duty to the plaintiff.

Negligence

is behavior that creates an unreasonable risk of harm to others.

Last Clear Chance Doctrine

Allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff. ex. suppose that Samantha and Nicole, in their cars, are facing each other while stopped at a red light. The light turns green, and Nicole starts to turn left at the intersection. Samantha sees Nicole start to turn, but she still continues to travel straight through the intersection and crashed into Nicole's car. Although Samantha had the right of way at the intersection, she could have avoided hitting Nicole's car by braking or swerving. Thus, according to the last clear chance doctrine, Nicole could recover damages. *Legal Principle*: 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. this doctrine however leaves many situations in which an extremely careless defendant can cause a great deal of harm to a plaintiff who is barred from recovery due to minimal contributory negligence.

Superseding cause

is an unforseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered. For example, suppose Jennifer is improperly storing ammonia in her garage when a meteor strikes her garage, spilling the ammonia into a stream nearby. Will, living downstream, drinks water from the stream and becomes dangerously ill. Because the meteor was unforeseeable, Jennifer is not liable for Will's injuries, even through she breached her duty of care to Will. Superseding causes 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. In other words, superseding causes disprove the causation element necessary to sustain a negligence claim. A defendant in a negligence suit can also avoid liability by establishing a superseding cause.

Actual Cause

the first element, also known as cause in fact, is the determination that the defendant's breach of duty resulted directly in the plaintiff's injury. the courts commonly determine whether a breach of duty actually caused the plaintiff's injury by asking whether the plaintiff would have been injured if the defendant had fulfilled his or her duty. If the answer is no, then the actual cause of the plaintiff's injury was the defendant's breach. 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. Ex. Curtis argued that but for the flawed construction and maintenance of the wooden dock, she would not have injured her tibia.

Legal Principle

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.

Implied assumption of the risk

In contrast, implied assumption of the risk means that the plaintiff implicitly assumed a known risk.

Breach of Duty

Once the plaintiff has established that the defendant owes her a duty of care, she must prove that the defendant's conduct violated that duty. This violation is called a *breach of duty*. ex. a driver owes the other passengers in his car a duty of care to obey traffic signs. If he fails to stop at a stop sign, he has violated his duty to follow traffic signs and has therefore breached his duty of care.

Danger invites rescue

Some states have established other doctrines or statues to aid plaintiff's in negligence suits. For example, suppose an airplane taxiing at Reagan National airport in the winter runs off the runway and into the Potomac River due to the negligence of the airline. Some bystanders observe the crash and jump into the water to rescue the crash survivors. If any of the bystanders are injured while attempting to rescue the crash survivors, may courts will hold the airline liable for their injuries under what is known as the *danger invites rescue* doctrine.

Punitive damages

aka exemplary damages in typical negligence cases, courts rarely award *punitive 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*.

more info

business owners may avoid negligent hiring and wrongful death claims by using proper preemployment screening techniques.

Modified Comparative Negligence

courts calculate damages according to *modified comparative negligence* in the same manner, except that the defendant must be more than 50% at fault before the plaintiff can recover.

Compensatory damages

damages intended to reimburse a plaintiff for her or his losses.

Reasonable Person Standard

is a measurement of the way members of society expect an individual to act in a given situation. to determine the defendant's duty of care, the judge or jury must determine the degree of care and skill that a reasonable person would exercise under similar circumstances. 4 questions 1) How likely was it that the harm would occur? 2) How serious was the harm? 3) How socially beneficial was the defendant's conduct that posed the risk of harm? 4) What costs would have been necessary to reduce the risk of harm?

Causation

is the third element of a successful negligence claim, and it has two separate elements: actual cause and proximate cause. The plaintiff must prove both elements of causation to be able to recover damages.

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.

Pure comparative negligence (defense)

the court determines the percentage of fault of the defendant. the defendant is then liable for that percentage of the plaintiff's damages.

Negligence per se

Literally, "negligence in or of if itself" applies to cases in which the defendant has violated a statue enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs. The plaintiff doesn't 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 statue to establish proof of the negligence. A doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a defendant violated a statue that was designed to prevent the type of harm that the plantiff incurred. ex. Ohio passes a statue prohibiting the sale of alcohol to minors, and a minor runs a red light and kills two pedestrians while driving under the influence of alcohol sold to him illegally, the liquor store's violation of the statue prohibiting the sale of alcohol to minors establishes negligence per se on the part of the store. The families of the pedestrians do not need to establish that a reasonable person would have a duty not to seel alcohol to a minor.

Dram Shop Acts

allows bartenders and bar owners to be held liable for injuries caused by individuals who become intoxicated at the bar. Other states have passed laws that hold hosts liable for injuries caused by individuals who become intoxicated at the hosts' home.

Gross Negligence

an action committed with extreme reckless disregard for the property or life of another person.

Strict Liability

is liability without fault. The law holds an individual liable without fault when the activity in which she engages satisfies three conditions: (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; and (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. Inherently dangerous activities include dynamite blasting in a populated area and keeping animals that have not been domesticated. If an animal has shown a "vicious propensity," strict liability applies and the owner of the animal is responsible for any injuries suffered in an attack by the animal. If an individual keeps an animal that has not shown vicious propensity, he has a duty to warn and protect individuals who come into contact with the animal. strict liability has had an enormous impact on cases involving unreasonably dangerous products.

To prove negligence, a plaintiff must demonstrate:

1. *Duty*: The standard of care a reasonable person owes another. 2. *Breach of duty*: Failure to live up to the standard of care. 3. *Causation*: (a) Actual cause (cause in fact)-the determination that the plaintiff's harm was a direct result of the defendant's breach of duty; and (b) 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. 4. *Damages*: A compensable loss suffered by the plaintiff. The plaintiff has the burden of proving all four elements of a negligence case.

Good Samaritan Statues

A statue that exempts from liability a person, such as a physician passerby, who voluntarily renders aid to an injured person by negligently, but not unreasonably negligently, causes injury while rendering the aid. many states have additional ways to defend against a claim of negligence. For example, laws in some states hold that people in peril who receive voluntary aid from others cannot hold those offering aid liable for negligence. These laws, commonly called *Good Samaritan Statues*, attempt to encourage selfless and courageous behavior by removing the threat of liability.

Malpractice Cases

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 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 professional's breach of her duty of care can bring a negligence case against her. These actions are referred to as *malpractice cases*.

Contributory Negligence

a defense once available in all states but replaced today in some states by the defense of comparative negligence, applies in cases where both the defendant and the plaintiff were both negligent. The defendant must prove that (1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of hard and (2) the plaintiff's failure was a contributing cause to the plaintiff's injury. Some defense lawyers argue that if a plaintiff involved in a car accident failed to wear her seat belt, that failure constitutes contributory negligence because her actions contributed to her injuries. If the defendant successfully proves contributory negligence, no matter how slight the plaintiff's negligence, the plaintiff will be denied any recovery of damages. Because this defense seems unfair, many states have adopted last clear chance doctrine.

Proximate Cause

aka *legal cause* refers to the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions. 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. Ex. if a defective tire on a vehicle blows out, it is foreseeable that the driver may lose control and hit a pedestrian. It is not foreseeable, however, that the pedestrian may be a scientist carrying a briefcase full of chemicals that may explode on impact, causing a third-floor window to shatter and injuring an accountant at his desk. In most states, the accountant would not succeed if he sued the tire manufacturer for negligence. The tire failure is not considered a proximate cause of the accountant's injury because the contents of the pedestrian's briefcase were highly unusual. The pedestrian, however, would be eligible to recover damages from the tire manufacturer because hitting a pedestrian is a foreseeable consequences of tire failure. Thus, the defect in the tire is a proximate cause of the pedestrian's injury. Courts in a few states do not distinguish actual cause from proximate cause. In these states, if the defendant's action constitutes an actual cause, it is also considered the proximate cause. Therefore, in these few states, both the pedestrian-scientist and the third-flood accountant would be able to recover damages from the tire manufacturer in the previous example. *Legal principle*- 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.

Unfortunate Accident

an incident that simply could not be avoided, even with reasonable care. ex. Jonathan is driving on the highway when he suffers a stroke. Because of the stroke, he crashed 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.

Assumption of the risk

another defense available to defendants facing negligence claims. to use this defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonable encountered the risk of the actual harm the defendant caused. In other words, the plaintiff willingly assumed as a risk the harm she suffered.

Damages

are the final required element of a negligence action. The plaintiff must have sustained compensable injury as a result of the defendant's actions. 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*.

Notes from class

by contract or by state - get awarded of attorneys fees. by state would include landlord statues. Some states give attorneys fees. Negligence is not one of them (get awarded attorney's fees). Nominal damage- jury might want you to win. Even if you get $1, you're the winning party. you might get attorneys fees. not tested on how much punitive damages. punitive damages- deter other, recklessness. compensatory damages- courts limit how far they go. To win a negligence case. 4 elements. 1. duty, 2. breach of duty. 3. caucasion. 4. damages. you have to prove your case. jury will determine reasonable or not reasonable. - duty to warn, to maintain. duty- farmers owed a duty contruct maintain property safe dock warning duty sign business duties, duty to warn, duty maintain, duty to safe work conditions. -don't have duty to warn when its open and oblivious. but should warn anyway, jury will determine whether. Don't win with a duty and a breach, need to show causation. breach of duty caused injury. causation- actual cause- "but for" their breach of duty would she have been injured? No. actual- "but for" cause in fact. proximate: where society says in some point we're going to draw line. where it's no longer foreseeable. -the throwing of a cig on dry grass is foreseeable that house is going to burn. -not liable for all 100 houses burning but just 2. Palsgraf v. long island railroad has acutal cause "but for" but not proximate cause. defendant's mind- foresee Plaintiff's doctrines- when evidence is missing plaintiff can't prove case. two doctrines have been adopted. res ipsa loquitur- an inference can infer from the defendants. actions, negligence was the cause of the harm. res ipsa have to be certain things you have to prove. permits jury to find evidence. defense has to prove they were not negligent. contributory negligence- plaintiff (one suing) is 1% at fault, they lose the case. comparative negligence- defendant responsible for portion. plaintiff as well. (portion fault between two parties). assumption of risk has to be with the nature of event. base ball game, then baseball. not hot dogs. END CHAPTER 9

Res ipsa Loquitar

literally means "the thing speaks for itself." 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. To establish res ipsa loquitur in most states, the plaintiff must demonstrate that: 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. Direct evidence of negligence by the defendant, however, is not always available. For example, there may have been no witnesses to the negligent conduct and other evidence may have been destroyed. Therefore, two doctrines have been adopted by courts to aid plaintiffs in establishing negligence claims: res ipsa loquitur and negligence per se. Escola .v. Coca Cola.A waitress was injured when a bottle of Cola that she was removing from a case exploded in her hand. From the facts (1) bottled soft drinks ordinarily do not spontaneously explode and (2) the bottles had been sitting in a case, undisturbed, in the restaurant for approximately 36 hours before the plaintiff simply removed the bottle from the case, the jury reasonably inferred that the defendant's negligence in the filling of the bottle resulted in tits explosion. The plaintiff therefore recovered damages without direct proof of the defendant's negligence. Plaintiffs in numerous accident cases have subsequently ed the doctrine where there has been no direct evidence of negligence. The defendant's best response to this doctrine is to demonstrate other possible causes of the accident.