1. Chapter 09 Negligence and Strict Liability Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill/Irwin

2. Negligence (Definition): The failure to do what a reasonable person would do under the same or similar circumstances; the failure to satisfy a “reasonable person” standard of care 9-2

3. Elements of Negligence Duty: The standard of care (consistent with the actions of a “reasonable person”) that defendant owes plaintiff Duty: The standard of care (consistent with the actions of a “reasonable person”) that defendant owes plaintiff Breach of Duty: Defendant fails to satisfy the “reasonable person” standard of care Breach of Duty: Defendant fails to satisfy the “reasonable person” standard of care Causation: Defendant’s conduct (amounting to a breach of duty) causes plaintiff’s harm Causation: Defendant’s conduct (amounting to a breach of duty) causes plaintiff’s harm Damages: Plaintiff suffers compensable injuries Damages: Plaintiff suffers compensable injuries 9-3

4. Elements of Causation Actual Cause (or “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 Actual Cause (or “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 (or “legal cause”): Plaintiff and plaintiff’s damages were “reasonably foreseeable” when defendant breached his duty to plaintiff Proximate Cause (or “legal cause”): Plaintiff and plaintiff’s damages were “reasonably foreseeable” when defendant breached his duty to plaintiff 9-4

5. Types of Damages Compensatory Damages: Damages intended to reimburse plaintiff for his/her losses (consistent with purpose of tort law) Compensatory Damages: Damages intended to reimburse plaintiff for his/her losses (consistent with purpose of tort law) Punitive Damages (or “exemplary damages”): Imposed to punish defendant and deter others from committing similar acts; usually reserved for cases of “gross” negligence, involving defendants’ extreme, reckless disregard for property/life of others Punitive Damages (or “exemplary damages”): Imposed to punish defendant and deter others from committing similar acts; usually reserved for cases of “gross” negligence, involving defendants’ extreme, reckless disregard for property/life of others 9-5

6. 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 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: A “res ipsa” case requires the following proof: Event was of a kind that ordinarily does not occur in the absence of negligence 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” 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 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 Negligence Per Se--Permits plaintiff to prove negligence by offering evidence of defendant’s violation of statute enacted to prevent certain type of harm 9-6

7. Defenses to Negligence Contributory Negligence: Allows defendant to completely avoid liability by showing that plaintiff’s negligence (even to the slightest degree) contributed to plaintiff’s harm Contributory Negligence: Allows defendant to completely avoid liability by showing that plaintiff’s negligence (even to the slightest degree) 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 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 completely avoid liability by showing that plaintiff “actively, voluntarily and willingly” engaged in an activity where harm foreseeable Assumption of the Risk: Allows defendant to completely avoid liability by showing that plaintiff “actively, voluntarily and willingly” engaged in an activity where harm foreseeable 9-7

8. Strict Liability Doctrine: Imposes Liability without fault (i.e., no evidence of defendant’s intent to harm or negligence required) 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 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 9-8