CH 5 + 6: Negligence

Tort: many types of noncriminal wrongs done by one person that injure another

Tort vs. Criminal or Contract Law

• Criminal Law: behavior classified as dangerous to society

  • Prosecuted by the government whether victim wants to or not

  • Money award goes to government

• Contract Law (Civil Law): based on the breach of an agreement between two parties

  • Victim prosecutes and receives compensation or restitution

• Tort Law (Civil Law): an obligation imposed by the law with no agreement needed between parties

  • Victim prosecutes and receives compensation or restitution

Negligence: a breach of a legal duty to act reasonably that is the direct (or proximate) cause of injury to someone

• Negligent: a person who acts unreasonably or carelessly

• We do not owe EVERYONE the duty to act reasonably

• We owe the duty only to those people who would FORSEEABLY be injured by OUR actions

• Ordonez v. Gillespie (Texas.2001)

  • Housekeeper sexually assaulted by the child of a guest

Elements of a Negligence Case (AKA Negligence Per Se)

• Plaintiff must prove 4 elements:

  • Existence of a legal duty to act reasonably owed by the defendant to the plaintiff

  • A breach of that duty

  • Injury to the plaintiff

  • Proximate cause (breach of duty must be direct cause of the injury)

Reasonable Person Standard

• Reasonable Person of Ordinary Prudence: A legal standard used to determine whether a person's actions can be deemed negligent, assessing how a typical person would act in similar circumstances.

• Decided by the judge and jury based on evidence presented and past cases as well as information of geolocation

Proximate Cause

• Direct and immediate cause

• Injury must have been caused by breach of duty (bridge between them)

• Palace Bar v. Fearnot (Indiana.1978)

  • Intoxicated patron found outside bar on landing

Intervening or Superseding Occurrence

• Events independent of and occurring after the defendants alleged negligence may be the direct cause of the injury, rather than the defendants negligence

• Intervening

• Superseding

Preexisting Condition: physical impairment suffered prior to the fall

Legal Status of Plaintiff

• Duty of care owed by an establishment for the safety of its patrons varies in many states depending on the legal status of the person injured

• Invitee v. Licensee v. Trespasser

  • Invitee: someone who comes to an establishment for the purpose for which the business is open to the public for a purpose directly or indirectly connected with hat business

    • Greatest duty of care owed to them

    • Hotel or Restaurants owes a duty to:

      • Reasonably inspect the premises for dangerous conditions

      • Exercise reasonable care to eliminate the danger

      • Necessary reasonable care (lack of negligence) encompasses both repair of and warning abut the dangerous condition

    • Liability may result if the business:

      • Knows or would discover a dangerous condition that presents and unreasonable risk of harm

      • Should expect that invitees will not discover or realize the danger or will fail to protect themselves against it

      • Fails to exercise reasonable care to protect its invitees against the danger

    • Active vigilance

      • Montes v. Betcher (Minnessotta.1973)

        • Drive off short dock at resort, struck head laceration/back injury

  • Licensees: someone who is on the premises of another by permission or acquiescence of the owner or occupier, and not by invitation

    • States define the duty owed to licensees in a majority of states, duty owed is twofold

      • Refrain from willfully or unprovokingly injuring the licensee or acting in a manner to increase danger

      • Warn of any latent dangers on the premises of which the property owner has knowledge

    • Steinberg v. Irwin Operating Co. (FLA. 1956)

      • Steinberg went to visit guest who was absent, decided to go to theater and fell

  • Trespassers: person who enters a place without the permission of the owner or occupier

    • Least duty owed

    • Landowner or possessor does not owe a duty to safeguard a trespasser from injury caused by conditions of the land

    • David Hanson v. Hyatt Corp (Illinois. 1990)

      • Plaintiff snuck into hotel pool through hole in fence and injured himself

Minority Position

• Some states have abolished the distinction between licensees, invitees, and trespassers, and the duties owed to each

• In those states the occupier of land owes a duty of care to all three

• Even in these states the standard of reasonable care may vary with the circumstances of the visitor’s entry on the premises

Negligence Doctrines Favoring the Plaintiff

• Res Ipsa Loquitur

  • Plaintiff’s injury was cause by an accident that would not normally have happened without negligence

  • Thing causing the injury was within the exclusive control of the defendant

  • The plaintiff did not provoke the accident

  • Opportunity to Rebut

    • Where the doctrine applies, the defendant does not automatically lose

    • Defendant had an opportunity to rebut the inference that it was negligent

• Children and Reasonable Person

  • Children do not comprehend dangers obvious to more mature people

  • Children are not able to weigh cause and effect accurately

  • Children can not be expected to recognize risks and take appropriate precautions

  • Duty imposed on adults to act reasonably is usually greater when young children are involved

  • Room Furnishing

    • A hotel must anticipate dangers and use reasonable care to protect children against dangers that may be caused by furnishing

• Attractive nuisance doctrine

  • Exception for child trespassers

  • Potentially dangerous object or condition of exceptional interest to young people

    • Swimming pool

    • large empty box

    • Snow pile suitable for sliding

    • Equipment or ditches at a construction site

• Negligence Per Se

  • Conduct that violates a law or ordinance designed to protect the safety of the public

  • Under majority view, noncompliance with law or ordinance is not conclusive on the defendant’s side of the breach of duty but it is evidence

  • Cotton v. First Overseas Investment (FLA. 1986)

    • Company dumped ash directly into pool and made it cloudy; invitee drowned

  • Prima Facie Evidence

    • If unrebutted, it alone is sufficient evidence to support a judgement for the plaintiff

    • A business can request a lawyer to perform a legal audit in which they will make sure the business is in compliance with applicable laws and will let business know

• Strict or Absolute Liability

  • Normally defendants are not liable unless they do something wrong

  • If applicable, a defendant will be liable even though they violated no duty and did nothing wrong

  • Imposes liability on the seller of a defective product without regard to negligence

  • A product is defective for this purpose if it is designed or manufactured improperly or if it contains inadequate earning of any dangers present

  • Liability is a matter of social policy and based on 3 objectives:

    • Retail seller continues relationship with distributor, the seller is in a position to pressure for improve safety of its products

    • A seller of goods assumes a special responsibility to its customers who expect the seller to stand behind its goods

    • Spread the cost of damages suffered by individuals from the defect products

• Respondent Superior

  • Let the master (employer) answer

  • Founded on theory that an employee is an agent of the employer

  • Whenever an employee is performing the duties of his job, he is acting on behalf of the employer

  • Employer is liable for the employee’s wrongful conduct through a substitute

Independent Contractors

• Someone who contracts to do one or more specific project for someone else and maintains control of the method for doing the work

• A company generally is not liable for the acts of independent contractors it hires

• Factors to consider

  • Who provides the tools and place of work

  • The length of time hired

  • Method of payment (by time or by job)

  • Is the work performed part of regular business or not

  • Intentions and beliefs of the parties concerning their relationship

Nondelegable Duties

• Duties that cannot be transferred to another

• For policy reasons, the employer can not avoid liability on the ground that an independent contractor failed to properly perform the work

• Rule is intended to motivate the hotel or restaurant to monitor carefully the work on an independent contractor

• Exception applies for the general rules that an employer is not liable for the acts of an independent contractor

• Duty imposed to keep the premises reasonably safe is nondelegable

Duty to Aid a Person in Distress

• Law does not impose a legal duty on individuals to rescue someone in trouble

• Courts agreed that moral responsibility is a matter of conscience and not law

• No liability will result if a rescuer chooses to do nothing

• Liability will result if a rescue attempt is done negligently

• REASON FOR THE RULE IS THE EXPECTATION THAT, HAD A RESCUER NOT ATTEMPTED TO HELP, SOMEONE WITH THE REQUISITE SKILLS WOULD LIKELY HAVE OFFERED TO HELP

• ONCE OTHERS OBSERVE THAT A PERSON IN NEED IS BEING TENDED TO, THEY ARE LESS LIKELY

Duty of Business Owner to Aid Invitees in Danger

• The law in most states requires business owner to lend a hand under certain circumstances

  • Proprietor’s lack of care would aggravate the harm

  • Rationale is that the proprietor is deriving some economic benefit from the presence of the customer

  • Ensuring that invitees are safe is a cost of doing business

Limitation on Duty to Invitees

• Business owner’s duty to aid a patron in distress is not absolute

  • If the guest in danger is being care for by others who seem competent to take care of the guest then the establishment is relieved from the duty to offer aid

  • Baker v. Fenneman & Brown (DBA Taco Bell) (IND. 2003)

    • Guest fainted multiple times, suffered injury, taco bell did not assist

Statutory Protection for Good Samaritans

• Laws that protect a person who reacts and attempts to help a sick or injured person who is in immediate danger

• Rescuer is not liable for any injuries cause in the attempt to provide assistance

• Rescuer is not liable for ordinary negligence, only gross negligence

• Purpose is to encourage voluntary aid to people in danger by limiting rescuers risk of potential liability

Rescue Doctrine

• Benefits a rescuer who is injured while administering aid

• Choking Situations

  • Law does not require restaurant to administer first aid to a choking patron

  • Restaurant’s only duty is to summon medical assistance for the diner

  • If restaurant calls 911, it is free from liability

  • Restaurant chooses to administer first aid and does so negligently, it will be held liable in many states

Contributory Negligence

• Plaintiff’s carelessness contributed to the injury

• Plaintiff cannot successfully sue a negligent defendant

• All-or-nothing effect is considered unduly harsh to the plaintiff

Comparative Negligence

• Plaintiff’s negligence will not totally defeat the lawsuit

• Jury will allocate liability between the plaintiff and the defendant depending on their relative degree of culpability

• In a pure system plaintiffs will collect the appropriate share of their damages regardless of the percentage of fault attributed to them

• Some states follow the comparative negligence rule provide that, for the plaintiff to recover, the percentage of liability allocated to the plaintiff must be less than that assigned to the defendant

Doctrine of last clear chance tempered by comparative negligence

• Contributory negligence doctrine greatly benefits defendant by barring plaintiffs from suing

• In certain circumstances, plaintiffs can use the doctrine of last clear chance to support their cases

• Elements to establish before doctrine comes in to play

  • Plaintiff has been negligent

  • Plaintiff is in a position of danger that cannot be escaped by the exercise of ordinary care

  • Defendant knew of the plaintiff’s immediate danger

  • Defendant had a clear chance, by the exercise of ordinary care, to avoid injury to the plaintiff, but failed to do so

Assumption of Risk

• Plaintiff voluntarily engages in conduct known to present a risk of injury

• If plaintiff is injured due to that risk, the plaintiff cannot successfully sue for the loss

• Plaintiff assumed the risk and accepted the chance that injury might occur and impliedly agreed not to sue if it does

• To establish:

  • Defendant must show that the plaintiff

    • Had knowledge of the risk

    • Understood the risk

    • Had a choice of either avoiding the risk or engaging in conduct that confronted the risk

    • Voluntarily chose to take the risk
      TO COME FORWARD TO HELP