1. 7-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin

2. 7-2 2 Crimes Intentional Torts Negligence and Strict Liability Intellectual Property and Unfair Competition Crimes and Torts P A R T

3. 7-3 Negligence and Strict Liability PA E TR HC 7 Mistakes are a fact of life. It is the response to error that counts. Nikki Giovanni

4. 7-4 Learning Objectives Identify the elements of negligence Define the reasonable care standard and the role of for eseeability Explain whether a defendant has breached a duty of reasonable care and applicable defenses Understand special doctrines and injuries in the law of negligence

5. 7-5 Elements of a negligence claim are : 1.Defendant owed a duty of care to plaintiff, 2.Defendant committed a breach of duty, 3.Breach was actual and proximate cause of the injury experienced by plaintiff Negligence

6. 7-6 In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant’s conduct –A duty may arise if a special relationship existed between the parties Examples of a special relationship: doctor-patient, lawyer-client, accountant-client Duty of Due Care

7. 7-7 If a duty exists, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances –Reasonable person standard The test focuses on defendant’s behavior, not defendant’s intent –Reckless behavior may be unreasonable Breach of Duty of Due Care

8. 7-8 Based on the duty a property owner or tenant has to those on the property Duty varies with type of person on property Invitee (business visitor or member of the public) –Owner or tenant must exercise reasonable care for safety of his/her invitees Premises Liability Cases

9. 7-9 Licensee (those on property for his/her own purpose) –Owner or tenant obligated only to warn licensee of hidden, dangerous conditions Trespasser (those on property illegally) –Owner or tenant owes no duty, but may not willfully injure trespassers Premises Liability Cases

10. 7-10 The defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff –(1) was within the class of persons intended to be protected by the statute or other law, and –(2) suffered harm of a sort that the statute or other law was intended to protect against Negligence Per Se

11. 7-11 Injuries may include bodily or emotional injury, and property or economic damage Causal link between the alleged misconduct and the injury requires: –Actual cause: plaintiff would not have been hurt “but for” defendant’s breach of duty (act or omission) –Proximate cause: plaintiff’s injury was foreseeable consequence of defendant’s act or omission Causation and Injury

12. 7-12 An event that occurs after initial breach of duty may worsen a plaintiff’s injury –Example: plaintiff injured in accident and while unconscious, a thief steals the plaintiff’s wallet If latter event is foreseeable, defendant will be deemed liable If latter event not foreseeable, defendant will be absolved from liability –Example: Stahlecker v. Ford Motor Co. Causation and Injury

13. 7-13 An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself) Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) harm would not occur in absence of negligence, and (3) plaintiff not responsible for his own injury –Example: after abdominal surgery, patient complains of pain in abdomen and X-ray shows surgical clamp left in abdomen Causation and Injury

14. 7-14 Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety –Example: auto accident in which defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully Defenses: Contributory Negligence

15. 7-15 Contributory negligence used to be a complete defense, but most states enacted comparative negligence systems in which a court or jury determines relative negligence of parties and awards damages in proportion to each party’s degree of negligence See Berberich v. JackBerberich v. Jack Comparative Negligence

16. 7-16 Assumption of risk is plaintiff’s voluntary consent to known danger –Example: plaintiff snowboards and breaks leg during a fall Exculpatory clause: plaintiff expressly assumes risk of injury by a contract term that attempts to relieve defendant of a duty of care otherwise owed to plaintiff Defenses: Assumption of Risk

17. 7-17 Liability without – or irrespective – of fault Thus, a defendant is liable even though s/he did not intend to cause harm and did not act recklessly or negligently Basic for product liability cases Strict Liability

18. 7-18 Imposing strict liability is a social policy decision that risk associated with an activity, especially abnormally dangerous activities, should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk Strict Liability

19. 7-19 Thought Question Does tort law have a useful purpose in society? Do the remedies make sense?