Chapter 9 Negligence and Strict Liability Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

9-2 Chapter 9 Case Hypothetical and Ethical Dilemma As this chapter indicates, strict liability is liability without fault. One example of strict liability is workers’ compensation, a state-administered system through which workers are compensated for work-related injuries. Generally, to prove a workers’ compensation claim, a worker need only demonstrate that he or she sustained a work-related injury by accident arising out of the course and scope of employment. Negligence of the employer or employee is essentially irrelevant. Should workers’ compensation be based on the theory of strict liability, or should it instead be based on the relative fault of the employer and employee? Explain your response.

9-3 Chapter 9 Case Hypothetical William “Bill” Lane and Robert “Bo” Gutierrez are owners of “Bill-Bo” Bowling Balls, Inc. a small bowling ball manufacturing company located in Topeka, Kansas. One day, while walking on the public sidewalk immediately adjacent to the “Bill-Bo” Bowling Balls building, a bowling ball fell on Richard Weber, causing severe (but fortunately, non-fatal) injuries to Richard. A sole witness, Anne Marie Norton, saw the bowling ball fall from a second-story window of the building and strike Richard, but she was not able to identify the perpetrator. Richard’s attorney, Samuel Pettibone (“S.P.”) Ayre, has filed a lawsuit listing Bill Lane, Bo Gutierrez and Bill-Bo Bowling Balls, Inc. as co-defendants in the case. Will Richard Weber and his attorney, S.P. Ayre, succeed in the litigation?

9-4 Chapter 9 Case Hypothetical Don Streater is driving his new Mustang on a two-lane road, Highway 101, on the outskirts of town. The speed limit on Highway 101 is 45 miles per hour. Albert Hunt is also driving on Highway 101, heading in the opposite direction from Streater. Hunt looks to his passenger seat to find a map, when he veers across the center line into Streater’s direction of travel. The two cars collide; luckily, neither man is killed, but Streater is seriously injured. In financial terms, his medical injuries, medical expenses and pain and suffering are estimated at approximately one hundred thousand dollars. Streater sues Hunt, alleging negligence on the part of the defendant. The evidence at trial establishes that defendant Hunt was traveling at 50 miles per hour, that he had consumed three beers at lunch approximately 30 minutes before the accident occurred, that he has 20/50 uncorrected vision, and that he was not wearing his prescription eyeglasses at the time of the accident. Evidence at trial also establishes that plaintiff Streater was traveling 50 miles per hour at the time of the accident, and that he was not wearing his seat belt when the collision occurred. Should the jury return a verdict in favor of Streater in the amount of one hundred thousand dollars (representing his medical injuries, medical expenses, and pain and suffering,) plus the associated costs of litigation? Does it matter whether the state in which the accident occurred recognizes the contributory or comparative negligence doctrine? In not wearing his seat belt, did plaintiff Streater “assume the risk?”

Negligence (Definition): The failure to do what a reasonable person would do under the same or similar circumstances; the failure to satisfy a “reasonable person” standard of care 9-5

9-6 Elements of Negligence Duty: The standard of care (consistent with the actions of a “reasonable person”) that defendant owes plaintiff Duty: The standard of care (consistent with the actions of a “reasonable person”) that defendant owes plaintiff Breach of Duty: Defendant fails to satisfy the “reasonable person” standard of care Breach of Duty: Defendant fails to satisfy the “reasonable person” standard of care Causation: Defendant’s conduct (amounting to a breach of duty) causes plaintiff’s harm Causation: Defendant’s conduct (amounting to a breach of duty) causes plaintiff’s harm Damages: Plaintiff suffers compensable injuries Damages: Plaintiff suffers compensable injuries

9-7 Elements of Causation Actual Cause (or “cause in fact”): Defendant’s breach of duty resulted directly in plaintiff’s injury; “but for” defendant’s breach of duty, plaintiff would not have been injured Actual Cause (or “cause in fact”): Defendant’s breach of duty resulted directly in plaintiff’s injury; “but for” defendant’s breach of duty, plaintiff would not have been injured Proximate Cause (or “legal cause”): Plaintiff and plaintiff’s damages were “reasonably foreseeable” when defendant breached his duty to plaintiff Proximate Cause (or “legal cause”): Plaintiff and plaintiff’s damages were “reasonably foreseeable” when defendant breached his duty to plaintiff

9-8 Types of Damages Compensatory Damages: Damages intended to reimburse plaintiff for his/her losses (consistent with purpose of tort law) Compensatory Damages: Damages intended to reimburse plaintiff for his/her losses (consistent with purpose of tort law) Punitive Damages (or “exemplary damages”): Imposed to punish defendant and deter others from committing similar acts; usually reserved for cases of “gross” negligence, involving defendants’ extreme, reckless disregard for property/life of others Punitive Damages (or “exemplary damages”): Imposed to punish defendant and deter others from committing similar acts; usually reserved for cases of “gross” negligence, involving defendants’ extreme, reckless disregard for property/life of others

9-9 Plaintiff’s Doctrines Res Ipsa Loquitur--Permits judge/jury to infer that defendant’s negligence caused plaintiff’s harm (in cases where no direct evidence of defendant’s lack of due care) Res Ipsa Loquitur--Permits judge/jury to infer that defendant’s negligence caused plaintiff’s harm (in cases where no direct evidence of defendant’s lack of due care) “The thing speaks for itself” “The thing speaks for itself” A “res ipsa” case requires the following proof: A “res ipsa” case requires the following proof: Event was of a kind that ordinarily does not occur in the absence of negligence Event was of a kind that ordinarily does not occur in the absence of negligence Other responsible causes, including the conduct of third parties and plaintiff, have been effectively “ruled out” Other responsible causes, including the conduct of third parties and plaintiff, have been effectively “ruled out” Indicated negligence was within scope of defendant’s duty to plaintiff Indicated negligence was within scope of defendant’s duty to plaintiff Proof of these three elements does not require a finding of negligence, Proof of these three elements does not require a finding of negligence, however; it permits it however; it permits it Negligence Per Se--Permits plaintiff to prove negligence by offering evidence of defendant’s violation of statute enacted to prevent certain type of harm Negligence Per Se--Permits plaintiff to prove negligence by offering evidence of defendant’s violation of statute enacted to prevent certain type of harm

9-10 Defenses to Negligence Contributory Negligence: Allows defendant to completely avoid liability by showing that plaintiff’s negligence (even to the slightest degree) contributed to plaintiff’s harm (9 states) Contributory Negligence: Allows defendant to completely avoid liability by showing that plaintiff’s negligence (even to the slightest degree) contributed to plaintiff’s harm (9 states) Comparative Negligence: Allows apportionment of liability between plaintiff and defendant, according to degree of responsibility each bears for plaintiff’s harm Comparative Negligence: Allows apportionment of liability between plaintiff and defendant, according to degree of responsibility each bears for plaintiff’s harm Pure Comparative Negligence – Court determines percentage of fault of defendant and liable for that percentage (13 states adopted) Pure Comparative Negligence – Court determines percentage of fault of defendant and liable for that percentage (13 states adopted) Modified Comparative Negligence – Court determines percentage of fault of parties but defendant must be more than 50% at fault before (s)he can recover (28 states adopted) Modified Comparative Negligence – Court determines percentage of fault of parties but defendant must be more than 50% at fault before (s)he can recover (28 states adopted) Assumption of the Risk: Allows defendant to completely avoid liability by showing that plaintiff “actively, voluntarily and willingly” engaged in an activity where harm foreseeable (express and implied) Assumption of the Risk: Allows defendant to completely avoid liability by showing that plaintiff “actively, voluntarily and willingly” engaged in an activity where harm foreseeable (express and implied)

9-11 Strict Liability Doctrine: Imposes Liability without fault (i.e., no evidence of defendant’s intent to harm or negligence required) Imposes Liability without fault (i.e., no evidence of defendant’s intent to harm or negligence required) Persons who engage in activities so inherently dangerous that no amount of due care can make them safe are strictly liable, regardless of degree of care they used when undertaking the activity Persons who engage in activities so inherently dangerous that no amount of due care can make them safe are strictly liable, regardless of degree of care they used when undertaking the activity Instead of banning such activities, law allows engagement but holds parties liable for all resulting harm Instead of banning such activities, law allows engagement but holds parties liable for all resulting harm