Chapter 7: Negligence and Strict Liability

4 elements of negligence

1. duty of care (the defendant owed the plaintiff a duty of care)

2. breach of duty of care

3. causation (the breach is the cause of…

4. injury/damage to the plaintiff

(don’t bother coming in)

4 elements of negligence per se

1. violation of law (the defendant violated a law that establishes a duty of care)

2. the people to be protected (plaintiff is among the class of people who were intended to be protected by the violated law)

3. the harm to be prevented (plaintiff suffered the kind of harm that was intended to be prevented by the violated law)

4. causation of damages

duty of care

a. reasonable person duty

b. legally impacted duty (failure = negligence per se)

c. superior skill duty (failure = malpractice)

d. emergency rule (responsible for gross negligence)

affirmative duty to act

a. special relationship rule (commercial relationship to custodial)

b. one who undertakes a duty must carry out that duty

premise liability laws (landowner’s duty)

for invitees (people on our property for commercial benefit

• duty = to protect from known dangers

for licensees (people allowed onto the property with our permission)

• duty = to warn them of hidden dangers they are unlikely to discover

for trespassers (people on the property without permission)

• duty = not to harm intentionally once their presence is known

reasonable care

the degree of care that a reasonable person of ordinary prudence would use in similar circumstances

the forseeability of resulting harm

a reasonable person may engage in conduct with a low risk of harm or where the harm is unforeseeable, but may not engage in conduct that is highly likely to cause foreseeable harm

the seriousness and magnitude of foreseeable resulting harm

a reasonable person may engage in conduct that poses a risk of minor harm (like skinned knees), but not conduct that poses a risk of serious harm (like death)

the social utility of their conduct

a reasonable person may engage in if the benefits justify taking the risks (like the benefits of nuclear power despite the risks), but not where the risks outweigh the benefits (like building a nuclear reactor just for fun)

the ease or difficulty of avoiding a foreseeable risk

a reasonable person might take steps to avoid or minimize the foreseeable risks of an activity, particularly if it is easy or inexpensive to do so, but might not do so if it would be very difficult or expensive to do so

actual cause

• traditional “but for” test: actual cause exists if the plaintiff’s harm would not have occurred but for the defendant’s negligent behavior

• “substantial factor” test: under which a defendant’s breach of its duty of care is considered an actual cause of the plaintiff’s harm if it was a substantial factor in causing harm

proximate cause

• the idea to place a legal limit on the extent of a negligent person’s liability (only liable for the proximate results of their negligence)

• foreseeable risk test: focuses on the actual proximity (in time and place) between the defendant’s negligent conduct and the resulting harm

intervening cause

• happens after the defendant’s negligent act and contributes to the plaintiff’s injury

• ex: Deborah leaves her keys in the car while she runs into a store and Marybeth steals the car and severely injures Angela

• Deborah would still be held liable since it is foreseeable that someone might steal a car with keys left in it and harm someone while driving it)

other causation rules

defendants are liable for

• the full extent of someone’s injuries when they have a physical peculiarity

• diseases their victim may contract while weakened by their injuries and jointly liable (along with negligent physician) for negligent medical care their victims receive for their injuries)

• injuries sustained by those making reasonable attempts to avoid being injured by the negligent person’s acts

res ipsa loquitor “the thing speaks for itself”

3 elements

1. the plaintiff’s injury would not ordinarily occur unless someone was negligent

2. the plaintiff was not responsible for causing their injury

3. the defendant has exclusive control of the thing that caused the injury

contributory negligence

the plaintiff contributed to causing their own injury by acting negligently

last clear chance doctrine

a plaintiff who acted negiligently can still recover if they can show that the defendant had the “last clear chance” to avoid the harm

comparative negligence

distribute the cost of a person’s damages by comparing the negligence of the parties who contributed to causing the damages

pure comparative negiligence

allow a plaintiff to recover any portion of their damages that are attributable to a defendant’s negligence, even if the plaintiff’s negligence was greater

mixed comparative negligence laws

allows plaintiff to recover damages only if others bore 50 percent or more of the responsibility for plaintiff’s damages

assumption of risk

the plaintiff knowing and voluntarily exposed themselves to the risks created by the defendant’s negligence

comparative fault laws

treat assumption of risk as a type of fault to be included in comparisons between each parties’ negligence

recklessness

• when a defendant’s behavior indicates a “conscious disregard for a known high degree of probable harm to another”

• assumption of risk is a strong defense for recklessness

strict liability

• a person who participates in certain kinds of activities is held responsible for any resulting harm to others, regardless of how much or little care they use

• risks associated with certain activities should be borne by the person whose actions created the risk and caused the loss, rather than by an innocent person who has suffered the loss

• assumption of risk is also a defense here