1. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. C HAPTER 8: N EGLIGENCE AND S TRICT L IABILITY

2. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. T OPICS C OVERED IN C HAPTER 8: N EGLIGENCE, S TRICT L IABILITY I. Negligence. A. Breach of Duty of Care. B. Factual Cause. C. Harm. D. Defenses to Negligence.  2

3. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. T OPICS C OVERED IN C HAPTER 8: N EGLIGENCE, S TRICT L IABILITY II. Strict Liability. A. Activities Giving Rise to Strict Liability. B. Defenses to Strict Liability. 3

4. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. N EGLIGENCE  Elements of Negligence: Duty of Care. Breach of Duty. Factual Cause. Harm. Scope of Liability. 4

5. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. B REACH OF D UTY OF C ARE  Reasonable Person Standard – degree of care that a reasonable person would exercise in a given situation. Children. Physical Disability. Mental Disability.  5

6. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. B REACH OF D UTY OF C ARE  Reasonable Person Standard. Superior Skill or Knowledge. Emergencies. Violation of Statute (negligence per se). R YAN V. F RIESENHAHN (1998). R YAN V. F RIESENHAHN (1998).  Duty to Act. Except in special circumstances, no one is required to aid another in peril. 6

7. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. B REACH OF D UTY OF C ARE  Duties of Possessors of Land. Rights are limited by duty to do what is reasonable in nature, and to protect the rights of visitors and neighbors. Duty to Trespassers – not to injure intentionally. Duty to Licensees – to warn of known dangerous conditions licensees are unlikely to discover for themselves.  7

8. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. B REACH OF D UTY OF C ARE  Duties of Possessors of Land. Duty to Invitees – to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover.  8

9. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. B REACH OF D UTY OF C ARE  Duties of Possessors of Land. Third Restatement: Reasonable duty extends to ALL, including trespassers (except ‘flagrant’ trespassers). Requires inspection of dangerous conditions. Love v. Hardee’s Food Systems, Inc. (2000).  Love v. Hardee’s Food Systems, Inc. (2000).  9

10. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. B REACH OF D UTY OF C ARE  Res Ipsa Loquiter. “The Thing Speaks for Itself.” Permits jury to infer both negligent conduct and causation from the mere occurrence of certain types of events. Example: a sponge or instrument left in a patient after a surgery. 10

11. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. F ACTUAL C AUSE  Factual Cause– the defendant's conduct was the actual cause of, or a substantial factor in causing, the injury. The “But For” Test. 11

12. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. S COPE OF L IABILITY  Foreseeability – no liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongs. P ALSGRAF V. L ONG I SLAND R AILROAD C O. (1928). P ALSGRAF V. L ONG I SLAND R AILROAD C O. (1928). 12

13. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. S COPE OF L IABILITY  Superseding Cause – an intervening act that relieves the defendant of liability. P ETITION OF K INSMAN T RANSIT C O. (1964). P ETITION OF K INSMAN T RANSIT C O. (1964). 13

14. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. H ARM  Harm to Legally Protected Interest – courts determine which interests are protected from negligent interference. 14

15. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. D EFENSES TO N EGLIGENCE  Contributory Negligence – failure of a plaintiff to exercise reasonable care for his own protection, which in a few States prevents the plaintiff from recovering anything.  15

16. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. D EFENSES TO N EGLIGENCE  Comparative Negligence – damages are divided between the parties in proportion to their degree of negligence; applies in almost all States.  M OORE V. K ITSMILLER (2006).  16

17. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. D EFENSES TO N EGLIGENCE  Assumption of the Risk - plaintiff's express consent to encounter a known danger, some states still apply implied assumption of the risk. 17

18. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Is defendant negligent? Has plaintiff assumed the risk? Defendant prevails Defendant loses Is plaintiff contributorily negligent? Is there comparative negligence? Did defendant have a last clear chance? Defendant prevails Defendant loses Damages are apportioned Yes No Yes No Yes No D EFENSES TO A N EGLIGENCE A CTION

19. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. A CTIVITIES G IVING R ISE TO S TRICT L IABILITY  Definition – absolute liability, or liability even without fault.  Activities Giving Rise to Strict Liability. Abnormally Dangerous Activities – involve a high degree of serious harm and are not matters of common usage. K LEIN V. P YRODYNE C ORP. (1991).  K LEIN V. P YRODYNE C ORP. (1991).  19

20. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. A CTIVITIES G IVING R ISE TO S TRICT L IABILITY  Activities Giving Rise to Strict Liability. Keeping of Animals – strict liability is imposed for wild animals and usually for trespassing domestic animals. 20

21. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. D EFENSES TO S TRICT L IABILITY  Contributory Negligence – is not a defense to strict liability.  Comparative Negligence – may apply and reduce plaintiff’s recovery.  Assumption of Risk – Restatement Third eliminates assumption of risk as a defense in most strict liability cases. 21