CrimesIntentional Torts

Negligence & Strict LiabilityIntellectual Property & Unfair

Competition

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Negligence and Strict Liability

Mistakes are a fact of life. It is the response to error that counts.

Nikki Giovanni

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Learning Objectives

The Elements of Negligence Defenses to Negligence Special Doctrines Related to Negligence

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The elements of a negligence claim are Defendant owed a duty of care to

plaintiff, Defendant committed a breach of duty, Breach was actual and proximate cause

of Injury experienced by the plaintiff

Negligence

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In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant’s conduct A duty may arise if a special relationship

existed between the parties Examples of a special relationship:

doctor-patient, lawyer-client, accountant-client

Duty of Due Care

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Williams v. Cingular Wireless

Facts & Procedural History: Plaintiff was injured by a driver using a cell

phone provided by Cingular Plaintiff sued Cingular for negligence in

providing the cell phone Trial court dismissed case; Plaintiff

appealed Issue:

Did Cingular owe a duty of care to plaintiff? Without a duty, there can be no breach

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Williams v. Cingular Wireless

Law Applied to Facts: Defendant had no relationship to plaintiff

so as to create a duty Little or no foreseeability that the sale of a

cell phone would cause plaintiff’s injury Imposing a duty on defendant would not

be sound public policy Holding:

Dismissal of claim against Cingular affirmed

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If a duty existed, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances Reasonable person standard

The test focuses on defendant’s behavior, not defendant’s intent Reckless behavior may be unreasonable

Breach of Duty of Due Care

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Scully v. Fitzgerald

Facts & Procedural History: Plaintiff leased store property from defendant Debris in adjacent building owned by

defendant caught fire and fire damaged plaintiff’s property

Plaintiff sued defendant alleging that defendant failed to use reasonable care in maintaining the adjacent building

Issue: Did defendant landlord breach a duty of care

to the plaintiff tenant?7 - 9

Scully v. Fitzgerald

Legal Reasoning: Landowner may be liable for fire if property kept

in unsafe condition and owner did not take reasonable precautions to prevent harm

Test: would reasonably prudent person recognize and foresee an unusual risk or likelihood of harm?

Defendant’s exposed collection of papers and refuse was flammable and potentially dangerous

Holding: Trial court erred in denying jury the opportunity

to decide if defendant breached a duty to plaintiff

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Injuries may include bodily or emotional injury, and property or economic damage

Causal link between the alleged misconduct and the injury requires: Actual cause: plaintiff would not have been

hurt “but for” defendant’s breach of duty (act or omission)

Proximate cause: plaintiff’s injury was foreseeable consequence of defendant’s act or omission

Causation and Injury

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An event that occurs after initial breach of duty may worsen a plaintiff’s injury Example: plaintiff injured in accident and

while unconscious, a thief steals the plaintiff’s wallet

If latter event is foreseeable, defendant will be deemed liable

If latter event not foreseeable, defendant will be absolved from liability Example: Stahlecker v. Ford Motor Co.

Causation and Injury

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An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself)

Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) harm would not occur in absence of negligence, and (3) plaintiff not responsible for his own injury Example: after abdominal surgery, patient

complains of pain in abdomen and X-ray shows surgical clamp left in abdomen

Causation and Injury

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Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety Example: auto accident in which

defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully

Defenses:Contributory Negligence

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Contributory negligence used to be a complete defense, but most states enacted comparative negligence systems in which a court or jury will determine relative negligence of parties and award damages in proportion to the degrees of negligence

Comparative Negligence

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Assumption of risk is the plaintiff’s voluntary consent to a known danger Example: plaintiff

goes snowboarding and breaks leg during a fall

Defenses:Assumption of Risk

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One can expressly assume the risk of injury by entering into a contract that attempts to relieve the defendant of a duty of care otherwise owed to plaintiff Such contract provisions are called

exculpatory clauses

Defenses:Assumption of Risk

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Davenport v. Cotton Hope Plantation

Facts & Procedural History: Plaintiff leased condo at defendant’s resort

and told defendant stairway floodlights inoperable

Plaintiff injured when trying to ascend stairs in dark

Trial court directed a verdict against plaintiff because he assumed the risk of his injury

Intermediate appellate court reversed because under state’s comparative negligence system, assumption of risk was a factor to be considered by a jury in determining relative fault7 - 18

Issue: Whether assumption of risk survives as a

complete bar to recovery under South Carolina’s comparative negligence system?

Legal Reasoning and Holding: A plaintiff is not barred from recovery by

assumption of risk unless plaintiff’s degree of fault is greater than the negligence of the defendant

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Davenport v. Cotton Hope Plantation

Premises liabilityNegligence Per SeStrict Liability

Special Doctrines

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Based on the duty a property owner or tenant has to those on the property

Duty varies with type of person on property

Invitee (business visitor or member of the public) Owner or tenant must exercise

reasonable care for safety of his/her invitees

Premises Liability Cases

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Licensee (those on property for his/her own purpose) Owner or tenant obligated only to warn

licensee of hidden, dangerous conditions Trespasser (those on property illegally)

Owner or tenant owes no duty, but may not willfully injure trespassers

Premises Liability Cases

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Delgado v. Trax Bar & Grill

Facts & Procedural History: Patron of Trax causing serious physical injury

to plaintiff defendant’s parking lot Patron convicted of assault, filed for

bankruptcy Plaintiff sued defendant for negligence and

premises liability theory Jury found for plaintiff and awarded damages

Issue: Did defendant owe a duty of care to the

plaintiff?7 - 23

Delgado v. Trax Bar & Grill

Legal Reasoning and Holding: A special relationship is an exception to

the general no-duty-to-protect rule Plaintiff was invitee, thus special

relationship existed Proprietor’s general duty owed to invitees

includes duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures

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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 statute or other law, and (2) suffered harm of a sort that the statute or

other law was intended to protect against

Negligence Per Se

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Facts & Procedural History: Widow of deceased employee sued defendant

employer (Baize) alleging that a fatal accident was caused by the employer’s failure to comply with a state safety regulation

Employer’s representative admitted: (a) not company policy to comply with regulation, (b) insurance representative visited two weeks before incident and recommended compliance, and (c) another employee recently injured similarly

Hargis v. Baize

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Holding: Negligence per se principle applies and

enables plaintiff to satisfy first two elements of negligence: duty and breach of duty

Jury would need to determine the remaining elements of negligence

Hargis v. Baize

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Liability without – or irrespective – of fault Thus, a defendant is liable even though

s/he did not intend to cause harm and did not act recklessly or negligently

Basic for product liability cases

Strict Liability

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Imposing strict liability is a social policy decision that risk associated with an activity, especially an abnormally dangerous activity, should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk

Strict Liability

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Test Your Knowledge

True=A, False = B A duty of due care may arise only if a

contract or statute creates such a duty Without a duty, there can be no breach Res ipsa loquitur means the thing speaks

for itself and is related to causation Negligence per se occurs when a plaintiff

contributed to his or her own injury

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Test Your Knowledge

True=A, False = B Contributory negligence and

comparative negligence mean the same thing

Assumption of risk is the plaintiff’s voluntary consent to a known danger

Imposing strict liability is a social policy decision

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Test Your Knowledge

Multiple Choice The elements of a negligence claim

include:(a) duty of due care(b) breach of the duty of due care(c) causation (actual and proximate)(d) injury to plaintiff(e) all of the above

The reasonable person test focuses on: (a) Defendant’s behavior(b) Defendant’s intent

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Test Your Knowledge

Multiple Choice The causation element requires proof of:

(a) actual cause (the “but for” test)(b) proximate cause (c) sufficient cause(d) both (a) and (b), but not (c)

A property owner or tenant must exercise reasonable care for the safety of his/her:(a) Invitees(b) Licensees(c) Trespassers7 - 33

Thought Question

Do you think tort reform is necessary?

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