{ Chapter 10 TORTS: Negligence and Strict Liability

Unintentional Torts & Negligence  Unintentional Tort: A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions  Negligence: Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do 1 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Elements of a Negligence Lawsuit 1. The defendant owed a duty of care to the plaintiff 2. The defendant breached the duty of care 3. The plaintiff suffered injury  The defendant’s negligent act caused the plaintiff’s injury  The defendant’s negligent act was the proximate cause of the plaintiff’s injuries 2

1. Duty of Care  An obligation not to cause any unreasonable harm or risk of harm  Tests used to determine whether a duty of care was owed:  Reasonable person standard  Reasonable professional standard 3

2. Breach of Duty of Care  Failure to exercise care or to act as a reasonable person would act 4

3. Injury to plaintiff  Personal injury or damage to the plaintiff’s property  Damages cannot be recovered if the plaintiff suffered no injury  Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession 5

Causation  Causation in fact (actual cause): A person who commits a negligent act is not liable unless actual cause can be proven  Proximate cause (legal cause): A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions 6

Special Negligence Doctrines 1. Professional malpractice 2. Negligent infliction of emotional distress 3. Negligence per se 4. Res ipsa loquitur 5. Good Samaritan laws 7

1. Professional malpractice  The liability of a professional who breaches his or her duty of ordinary care  Breach of reasonable professional standard 8

2. Negligent infliction of emotional distress  Permits a person to recover for emotional distress caused by the defendant’s negligent conduct 9

3. Negligence per se  Violation of a statute that proximately causes an injury 10

4. Res ipsa loquitur  Defendant had exclusive control of the situation that caused the plaintiff’s injury  Injury would not have ordinarily occurred but for someone’s negligence 11

5. Good Samaritan laws  Protects medical professionals who stop and render emergency first aid  Relieves them from liability for ordinary negligence  No relief for gross negligence or intentional or reckless conduct  Laypersons not trained in CPR not covered  If you don’t know how to do it – find someone who can 12

Defenses Against Negligence 1. Superseding or intervening event  An event for which defendant is not responsible 2. Assumption of risk  Plaintiff knowingly and voluntarily participates in a risky activity that results in injury 13

Defenses Against Negligence 3. Contributory negligence  Plaintiff who is partly at fault for his or her own injuries cannot recover against negligent defendant 4. Comparative negligence  Damages apportioned according to fault  Pure comparative negligence  Partial comparative negligence (50% rule) 14

Strict Liability  Strict liability is liability without (regardless of) fault  A participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligent  Abnormally dangerous activities 15

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