1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Litigation and Procedure Negligence and Strict Liability Litigation and Procedure Negligence and Strict Liability

2. Negligence “The Unintentional Tort” 1.Duty of due care -- there must be a duty owed to the plaintiff. 2.Breach -- duty must be breached. 3.Factual cause -- the injury must have been caused by the defendant’s actions. 4.Foreseeable harm (Proximate cause) -- it must have been foreseeable that the action would cause this kind of harm. 5.Injury -- the plaintiff must have been hurt. To win a negligence case, the plaintiff must prove that the defendant failed in five areas:

3. Duty of Due Care If a Defendant could have foreseen injury to a particular person, he/she has a duty to him. If a Defendant could have foreseen injury to a particular person, he/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. 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 a “dram act,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm. Many states have a “dram act,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm.

4. Breach of Duty A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances. A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances.

5. Factual Cause & Foreseeable Harm Factual Cause -- if the defendant’s breach ultimately led to the injury, he is liable. 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. Does not have to be the immediate cause of injury, but must be the first in the direct line. Foreseeable Harm -- to be liable, this type of harm must have been foreseeable. 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. The defendant does not have to know exactly what would happen -- just the type of event. 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. 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.

6. Car accident, car hitting bicyclist Example: Factual Cause & Foreseeable Harm Noise from accident startles someone who falls out a window Mechanic is NOT liable for falling person Factual cause and foreseeable type of injury Factual cause, but no foreseeable type of injury Bicyclist hits pothole and crashes Mechanic is NOT liable to cyclist No factual cause Mechanic fails to fix customer’s brakes, which causes... Car accident, car hitting bicyclist Car accident, but car does not hit bicyclist Car accident, but car does not hit bicyclist Mechanic is liable to cyclist

7. Injury & Damages Injury -- plaintiff must show genuine injury Injury -- plaintiff must show genuine injury Future injury may be compensated, but must be determined at the time of trial. Future injury may be compensated, but must be determined at the time of trial. Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive. Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

8. Defenses Assumption of the Risk Assumption of the Risk A person who voluntarily engages in an activity known to be risky cannot recover if he is injured. A person who voluntarily engages in an activity known to be risky cannot recover if he is injured. Contributory Negligence Contributory Negligence In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages. In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages. Comparative Negligence Comparative Negligence In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff. 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. The plaintiff can recover from the defendant to the percentage that the defendant is negligent.

9. Negligence per se Definition Definition Violation of a standard of care set by statute. Violation of a standard of care set by statute. Example Example Driving while intoxicated is illegal; if a drunk driver injures a pedestrian, he has committed negligence per se. Driving while intoxicated is illegal; if a drunk driver injures a pedestrian, he has committed negligence per se. Elements: Elements: Statute prohibits or requires action. Statute prohibits or requires action. Defendant’s actions violate statute. Defendant’s actions violate statute. Plaintiff’s injuries are the kind the statute was designed to protect against. Plaintiff’s injuries are the kind the statute was designed to protect against. Plaintiff is within the group the statute was designed to protect. Plaintiff is within the group the statute was designed to protect.

10. Strict Liability Defective Products -- may incur strict liability. Defective Products -- may incur strict liability. Ultrahazardous Activities -- defendants are virtually always held liable for harm. Ultrahazardous Activities -- defendants are virtually always held liable for harm. What is ultrahazardous? Includes using harmful chemicals, explosives and keeping wild animals. What is ultrahazardous? Includes using harmful chemicals, explosives and keeping wild animals. Plaintiff does not have to prove breach of duty or foreseeable harm. 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. Comparative negligence does not apply -- Defendant engaging in ultrahazardous activity is wholly liable. Some activities are so dangerous that the law imposes a high burden on them. This is called strict liability.

11. Negligence Was the breach the actual cause of Plaintiff’s injury? Plaintiff recovers Plaintiff recovers Did Defendant breach the duty? Did Defendant owe Plaintiff a duty? Was the breach the proximate cause of Plaintiff’s injury? Was Plaintiff also at fault? Is it a comparative negligence state? Plaintiff does not recover Plaintiff does not recover Plaintiff might recover Plaintiff might recover Yes No Yes No

12. Torts Committed by Business Vicarious Liability -- if someone commits a tort within the scope of his employment, the company is liable. Vicarious Liability -- if someone commits a tort within the scope of his employment, the company is liable.

13. Compensatory Damages A jury may award compensatory damages -- payment for injury -- to a plaintiff who prevails in a civil suit. A jury may award compensatory damages -- payment for injury -- to a plaintiff who prevails in a civil suit. The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely. The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely. Damages may include money for three purposes: Damages may include money for three purposes: 1.to restore any loss (such as medical expenses) caused by the illegal action 2.to restore lost wages if the injury kept the defendant from working 3.to compensate for pain and suffering

14. Punitive Damages While the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party. While the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party. Intended for conduct that is outrageous and extreme Intended for conduct that is outrageous and extreme Designed to “make an example” out of the defendant Designed to “make an example” out of the defendant Should deter others from doing same conduct and prevent this defendant from repeating actions Should deter others from doing same conduct and prevent this defendant from repeating actions Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded. Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded.

15. End of Negligence and Strict Liability