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Negligence and Strict Liability

PA ET RHC 07

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

Nikki Giovanni

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Learning Objectives

• Identify the elements of negligence• Define the reasonable care standard

and the role of foreseeability• Explain whether a defendant has

breached a duty of reasonable care and applicable defenses

• Understand special doctrines and injuries in the law of negligence

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• Elements of a negligence claim are:

1.Defendant owed a duty of care to plaintiff,

2.Defendant committed a breach of duty,

3.Breach was actual and proximate cause of the injury experienced by 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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Raleigh v. Performance Plumbing and Heating, Inc.

• Facts & Procedural History: – Plaintiffs sued defendant for damages they

suffered in an automobile accident caused by Weese, a Performance Plumbing employee

– Weese was driving his own truck on way home from work when he caused the accident

– Jury found that Weese was not acting within the scope of his employment for defendant company when he caused injury to plaintiffs

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• Issue: – Did defendant owe plaintiff a duty of care?

• Without a duty, there can be no breach

• Law Applied to Facts: – Employee was not acting in the course and

scope of employment at time of accident, so defendant had no legal duty to plaintiffs

• Holding: – Judgment affirmed

Raleigh v. Performance Plumbing and Heating, Inc.

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• If a duty exists, 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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Currie v. Chevron U.S.A., Inc.

• Facts & Issue: – Plaintiff filed wrongful death suit against defendant

company on theory that Chevron’s employee negligently authorized the gas pump used by a third party and plaintiff’s daughter died as a result

– Issue: Did district court err in denying Chevron’s motion for judgment as matter of law?

• Holding: – Jury question existed whether event was

reasonably foreseeable, thus duty of care arose– District court did not err; judgment affirmed

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• Premises liability• Negligence Per Se

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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Kroger Co. v. Plonski

• Facts & Trial Court Ruling: – Plonski, a business invitee, sued Kroger for

negligence after she was assaulted in store's parking lot by an unknown assailant

– Kroger moved for summary judgment arguing that the assault was not by a patron and was not foreseeable, thus a duty to protect the invitee did not arise

– Trial court denied summary judgment motion and Kroger appealed

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Kroger Co. v. Plonski

• Indiana Supreme Court Holding: – Fact finder (jury) must determine whether

Kroger should have done more to protect its business invitees from foreseeable criminal activity, such as providing adequate security

– Trial court properly denied Kroger’s motion for summary judgment

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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: – Plaintiffs retained defendant to treat and

prevent pest infestation in their residence, but employee used pesticide not approved for residential use, resulting in damages

– Defendants argued that any duties were contract-based, not based in negligence

– Trial court agreed and plaintiffs appealed

Kaltman v. All American Pest Control, Inc.

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• Supreme Court of Virginia Ruling: – Primary consideration of tort law is protection of

persons and property from injury; plaintiffs seek this protection

– Just because application of pesticide is included in defendant’s contract does not mean plaintiffs contracted away common law or statutory rights

– Defendants violated state law and plaintiffs are members of the class of persons for whose benefit the statute was enacted

– Reversed and remanded

Kaltman v. All American Pest Control, Inc.

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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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• Issue: – Did trial court err in failing to recognize a duty of

care from an employer to innocent third parties who are injured its employees who are exhausted due to working conditions imposed by employer

• Facts:– Injuries were not “natural and probable” result of

any negligent acts by defendant, but by decisions and conduct of the employee

– No foreseeability, thus no duty

Black v. William Insulation Co.

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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 determines relative negligence of parties and awards damages in proportion to each party’s degree of negligence

• See Berberich v. Jack

Comparative Negligence

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• Assumption of risk is plaintiff’s voluntary consent to known danger– Example: plaintiff snowboards

and breaks leg during a fall

• Exculpatory clause: plaintiff expressly assumes risk of injury by a contract term that attempts to relieve defendant of a duty of care otherwise owed to plaintiff

Defenses:Assumption of Risk

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• Strict Liability

Special Doctrines

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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 abnormally dangerous activities, 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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• 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

Test Your Knowledge

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• Multiple Choice– The elements of a negligence claim

include:a) duty of due careb) breach of the duty of due carec) causation (actual and proximate)d) injury to plaintiffe) all of the above

– The reasonable person test focuses on: a) Defendant’s behaviorb) Defendant’s intent

Test Your Knowledge

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• Multiple Choice– The causation element requires proof of:

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

– A property owner or tenant must exercise reasonable care for the safety of his/her:

a) Inviteesb) Licenseesc) Trespassers

Test Your Knowledge

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Thought Question

• Does tort law have a useful purpose in society? Do the remedies make sense?