Negligence and Strict Liability Chapter 9 Chapter 9: Negligence and Strict Liability Negligence and Strict Liability Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

Overview LO9-1: What are the elements of negligence? LO9-2: What are the doctrines that help a plaintiff establish a case of negligence? LO9-3: What are the defenses to a claim of negligence? LO9-4: What are the elements of strict liability?

Chapter 9 Hypothetical Case 1 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. Chapter 9 Hypothetical Case 1: 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. [Instructor: See Strict Liability in Chapter 9]

Chapter 9 Hypothetical Case 2 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 Weber. A sole witness, Anne Marie Norton, saw the bowling ball fall from a second-story window of the building and strike Weber, but she was not able to identify the perpetrator. Weber's attorney, Samuel Pettibone ("S.P.") Ayre, has filed a lawsuit listing Lane, Gutierrez, and Bill-Bo Bowling Balls, Inc. as co-defendants in the case. Will Weber and his attorney, Ayre, succeed in the litigation? Chapter 9 Hypothetical Case 2: 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 Weber. A sole witness, Anne Marie Norton, saw the bowling ball fall from a second-story window of the building and strike Weber, but she was not able to identify the perpetrator. Weber's attorney, Samuel Pettibone ("S.P.") Ayre, has filed a lawsuit listing Lane, Gutierrez, and Bill-Bo Bowling Balls, Inc. as co-defendants in the case. Will Weber and his attorney, Ayre, succeed in the litigation? [Instructor: See Defenses to Negligence in Chapter 9]

Negligence Definition: Elements of negligence Behavior that creates an unreasonable risk of harm to others; the failure to exercise reasonable care to protect another's person or property Elements of negligence Duty: The standard of care a reasonable person owes another (reasonable person standard) Breach of duty: Failure to live up to the standard of care Causation: Actual cause and proximate cause Damages: A compensable loss suffered by plaintiff Negligence is behavior that creates an unreasonable risk of harm to others, i.e., the failure to exercise reasonable care to protect another's person or property. In order to win a negligence case, the plaintiff must establish the following four elements of negligence: Duty: This is the standard of care a reasonable person owes another, i.e., the reasonable person standard. Breach of duty: This is the failure to live up to the standard of care. Causation: There is actual cause and proximate cause. Damages: These are the compensable loss suffered by the plaintiff.

Elements of Causation Actual cause (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 (legal cause): Extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions; in most states determined by if plaintiff and plaintiff's damages were reasonably foreseeable when defendant breached his duty to plaintiff Causation can be described in terms of actual cause, or proximate cause. Actual cause, or cause in fact, means that the defendant's breach of duty resulted directly in the plaintiff's injury; in other words, "but for" the defendant's breach of duty, the plaintiff would not have been injured. Proximate cause, or legal cause, is the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions; it exists in most states if the plaintiff and plaintiff's damages were reasonably foreseeable when the defendant breached his duty to plaintiff.

Types of Damages Compensatory damages: Damages intended to reimburse plaintiff for his/her losses (consistent with purpose of tort law) Punitive damages (exemplary damages): Imposed to punish defendant and deter others from committing similar acts; usually reserved for cases of gross negligence, involving defendant's extreme, reckless disregard for property/life of others Money damages can be categorized as compensatory or punitive. Compensatory damages are intended to reimburse the plaintiff for his or her losses. Punitive damages, also called exemplary damages, are imposed to punish the defendant and deter others from committing similar acts. Punitive damages are usually reserved for cases of gross negligence, involving the defendant's extreme and reckless disregard for the property and/or life of others.

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) A res ipsa case requires the following proof: 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 Indicated negligence was within scope of defendant's duty to plaintiff Negligence per se: Permits plaintiff to prove negligence by offering evidence of defendant's violation of statute enacted to prevent certain type of harm Certain legal doctrines may assist the plaintiff in successfully establishing a negligence case. In a res ipsa loquitur case, the judge and jury are allowed to infer that the defendant's negligence caused the plaintiff's harm, in certain cases where there is no direct evidence of the defendant's lack of due care. A res ipsa case requires the following proof: First, the event was of a kind that ordinarily does not occur in the absence of negligence; second, other responsible causes, including the conduct of third parties and the plaintiff, have been effectively ruled out; and third, the indicated negligence was within the scope of the defendant's duty to the plaintiff. In a negligence per se case, the plaintiff is permitted to prove negligence by offering evidence of the defendant's violation of a statute enacted to prevent a certain type of harm.

Defenses to Negligence Contributory negligence: Allows defendant to avoid liability by showing that plaintiff's own conduct contributed to plaintiff's harm Comparative negligence: Allows apportionment of liability between plaintiff and defendant, according to degree of responsibility each bears for plaintiff's harm Assumption of the risk: Allows defendant to avoid liability by showing that plaintiff willingly engaged in an activity where harm foreseeable Special defenses to negligence include Good Samaritan statutes and establishing a superseding cause. Defenses to negligence liability include theories of contributory negligence, comparative negligence, and assumption of the risk. With contributory negligence, the defendant can avoid liability by demonstrating that the plaintiff's own conduct contributed to the plaintiff's harm. With comparative negligence, liability is apportioned between the plaintiff and the defendant according to the degree of responsibility each bears for the plaintiff's harm, and the plaintiff's recovery is reduced by the plaintiff's degree of responsibility for his or her own harm. The defense of assumption of the risk allows the defendant to avoid liability by showing that the plaintiff willingly engaged in an activity involving foreseeable harm. Special defenses to negligence include Good Samaritan statutes (people in peril who receive voluntary aid from others cannot hold the others liable) and establishing a superseding cause (an unforeseen event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered).

Strict Liability Doctrine 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 Strict tort liability imposes liability without fault. In other words, strict liability requires no evidence of the defendant's intent to harm, or the defendant's negligence. Persons who engage in activities so inherently dangerous that no amount of due care can make their activities safe (such as transportation of toxic waste) are strictly liable, regardless of the degree of care they used when undertaking the activities.

Chapter 9 Hypothetical Case 3 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 $100,000. 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, had consumed three beers at lunch approximately 30 minutes before the accident occurred, has 20/50 uncorrected vision, and was not wearing his prescription eyeglasses at the time of the accident. Evidence at trial also establishes that Streater was traveling 50 miles per hour at the time of the accident, and was not wearing his seat belt. Should the jury return a verdict in favor of Streater in the amount of $100,000 (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 Streater assume the risk? Chapter 9 Hypothetical Case 3: 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 $100,000. 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, had consumed three beers at lunch approximately 30 minutes before the accident occurred, has 20/50 uncorrected vision, and was not wearing his prescription eyeglasses at the time of the accident. Evidence at trial also establishes that Streater was traveling 50 miles per hour at the time of the accident, and was not wearing his seat belt. Should the jury return a verdict in favor of Streater in the amount of $100,000 (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 Streater assume the risk? [Instructor: See Defenses to Negligence in Chapter 9]

Chapter 9 Hypothetical Case 4 Hollis McMurtry had been looking forward to his birthday celebration all month. A new nightclub, TwentyfiveEleven, was scheduled to open just a day before, and his friends had planned his birthday bash there. After a long evening of partying, and after McMurtry had consumed many drinks, he slipped on the club's very slick marble flooring in the bathroom and suffered a concussion and a deep cut to the face on a sharp piece of door hardware. The wound left a large scar on his face, which his doctors told him would require extensive plastic surgery to repair. Fearing that McMurtry would sue, and that others may suffer similar injuries, the club's owners quickly replaced the bathroom flooring and removed the hardware that caused McMurtry's injury. McMurtry's attorney, Jericka Dorland, advised him that she will invoke the doctrine of res ipsa loquitor in a lawsuit against the club. Why did Dorland choose res ipsa loquitor for this case? Is the club completely liable for McMurtry's injuries? Chapter 9 Hypothetical Case 4: Hollis McMurtry had been looking forward to his birthday celebration all month. A new nightclub, TwentyfiveEleven, was scheduled to open just a day before, and his friends had planned his birthday bash there. After a long evening of partying, and after McMurtry had consumed many drinks, he slipped on the club's very slick marble flooring in the bathroom and suffered a concussion and a deep cut to the face on a sharp piece of door hardware. The wound left a large scar on his face, which his doctors told him would require extensive plastic surgery to repair. Fearing that McMurtry would sue, and that others may suffer similar injuries, the club's owners quickly replaced the bathroom flooring and removed the hardware that caused McMurtry's injury. McMurtry's attorney, Jericka Dorland, advised him that she will invoke the doctrine of res ipsa loquitor in a lawsuit against the club. Why did Dorland choose res ipsa loquitor for this case? Is the club completely liable for McMurtry's injuries? [Instructor: See Elements of Negligence in Chapter 9]