Transcript No Slide Title

Negligence --
“The Unintentional Tort”
To win a negligence case, the plaintiff must
prove that the defendant failed in five areas:
◙ Duty of due care -- there must be a duty
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owed to the plaintiff.
Breach -- duty must be breached.
Factual cause -- the injury must have been
caused by the defendant’s actions.
Foreseeable harm -- it must have been
foreseeable that the action would cause this
kind of harm.
Injury -- the plaintiff must have been hurt.
Duty of Due Care
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If a defendant could have foreseen injury to a
particular person, she has a duty to him.
• In some states, a social host serving alcohol to an
adult may be found liable for harm done by the
person drinking the alcohol.
• Many states have “dram shop laws,” making liquor
stores, bars and restaurants liable for serving drinks
to intoxicated customers who later cause harm.
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Affirmative Duty to Act -- In general, the
common law does not require a bystander to
assist a person in danger.
◙ There are special rules for liability of
landowners. (See next slide.)
Duty of Landowners
◙ Duty to Trespassers – not to injure intentionally.
◙ Duty to Children – if a man-made item on the land
attracts children, landowner may be liable
◙ Duty to Licensees – to warn of known, but hidden
dangerous conditions licensees are unlikely to
discover for themselves.
◙ Duty to Invitees – to exercise reasonable care to
protect invitees against dangerous conditions
possessor should know of but invitees are unlikely
to discover.
Breach of Duty
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A defendant breaches his duty of due care by
failing to behave the way a reasonable person
would under similar circumstances.
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Companies and Employees -- courts have
found companies liable for hiring and retaining
employees known to be violent, when those
employees later injured co-workers.
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Negligence per se -- in special cases,
legislatures set a minimum standard for certain
groups of people (esp. children). When a
violation of that statute hurts a member of that
group, the duty is breached.
Factual Cause & Foreseeable Harm
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Factual Cause -- if the defendant’s breach
ultimately led to the injury, he is liable.
• Does not have to be the immediate cause of injury,
but must be the first in the direct line.
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Foreseeable Harm -- to be liable, this type of harm
must have been foreseeable.
• The defendant does not have to know exactly what
would happen -- just the type of event.
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Res Ipsa Loquitur -- in a few cases, the defendant
must prove he was NOT negligent or the facts
imply that his negligence caused the injury.
DO NOT CLICK! Let slide “build” on its own.
Ex: Factual Cause & Foreseeable Harm
Mechanic fails
to fix customer’s
brakes, which
causes...
Car
accident,
car hitting
bicyclist
Car accident,
car
does not hit
bicyclist
Car
accident,
car hitting
bicyclist
Noise from
accident startles
someone who falls
out a window
Bicyclist hits
pothole and
crashes
Mechanic is
liable to
cyclist
Mechanic is
NOT liable
for falling
person
Mechanic is
NOT liable
to cyclist
Factual
cause and
foreseeable
type of injury
Factual
cause, but
no
foreseeable
type of injury
No
factual
cause
Injury & Damages
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Injury -- plaintiff must show genuine injury
• Future injury may be compensated, but must
be determined at the time of trial.
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A bystander, unharmed physically, may
recover for emotional distress if...
• She was near the scene of the injury,
• Seeing the injury caused immediate shock, and
• She is a close relative of the (physical) victim
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Damages -- are usually compensatory,
designed to restore what was lost. In
unusual cases, they may be punitive.
Negligence
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Contributory Negligence
• In a few states, if the plaintiff is AT ALL
negligent, he cannot recover damages from
the defendant.
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Comparative Negligence
• In most states, if the plaintiff is negligent, a
percentage of negligence is applied to both
the defendant and the plaintiff.
• The plaintiff can recover from the defendant to
the percentage that the defendant is negligent.
• In some cases, a plaintiff found to be more
than 50% negligent cannot recover at all.
Assumption of the Risk
◙ A person who voluntarily enters
a situation that has an obvious
danger cannot complain if she is
injured.
• This rule applies to a situation
where the danger is well-known
and the participant chooses to be
present.
Strict Liability
Some activities are so dangerous that the law imposes
a high burden on them. This is called strict liability.
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Defective Products-- may incur strict liability.
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Ultrahazardous Activities -- defendants are
virtually always held liable for harm.
• What is ultrahazardous? Includes using harmful
chemicals, explosives and keeping wild animals.
• Plaintiff does not have to prove breach of duty or
foreseeable harm.
• Comparative negligence does not apply -defendant engaging in ultrahazardous activity is
wholly liable.