Contemporary Business Law

ByRichard A. Mann&Barry S. RobertsBusiness Law and the Regulation of Business, 11th ed. Chapter 8: Negligence and Strict Liability 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.1Topics Covered in this ChapterI. NegligenceA. Breach of Duty of Care B. Factual CauseC. Scope of Liability (Proximate Cause)D. HarmE. Defenses to NegligenceII. Strict LiabilityA. Activities Giving Rise to Strict LiabilityB. Defenses to Strict Liability 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.2Breach of Duty of Care Definition of Negligence conduct that falls below the standard established by law for the protection of others against unreasonable risk of harmReasonable Person Standard degree of care that a reasonable person would exercise in a given situationDuty to Act except in special circumstances, no one is required to aid another in peril 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.3Negligence and Negligence Per SeDoes Ds conduct violate any statute?

Does the statute expressly provide for civil liability?Is the statute intended to protect a class of persons, which includes P, from that type of hazard and harm?D is liable if causation and protected harm are proven.Was Ds conduct reasonable under the circumstances?D is not liable.YesYesNoYesNoNoYesNo 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.4Reasonable Person Standard Children and those with a physical disability must conform to conduct of a reasonable person of like age, disability, intelligence, and experienceMental deficiency the reasonable person standard applies despite the disabilitySuperior skill or knowledge professionals must exercise the same care and skill normally possessed by members of their professionsEmergencies the reasonable person standard applies, but the emergency is considered part of the circumstancesViolation of statute standard of contact may be set by statute or regulation 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.5Duties of Possessors of Land Under Second Restatement (majority):Duty to Trespassers not to injure intentionallyDuty to Licensees to warn of known dangerous conditions licensees are unlikely to discover for themselvesDuty to Invitees to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.6Duties of Possessors of Land Under Third Restatement (minority):[Except for flagrant trespassers,] a land possessor owes a duty of reasonable care to entrants on the land with regard to:conduct by the land possessor that creates risks to entrants on the landartificial conditions on the land that pose risks to entrants on the landnatural conditions on the land that pose risks to entrants on the land

2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.7Duties of Possessors of LandDuty to Invitee onlyTo exercise reasonable care to protect against dangerous conditions about which the possessor should know and which the invitee is unlikely to discover.Duty to Licensee (and Invitee)To warn of known dangerous conditions which the licensee is unlikely to discoverDuty to Trespasser (and all others)Not to injure intentionally 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.8CauseRes Ipsa Loquitur means the thing speaks for itself. This rule of circumstantial evidence permits the jury to infer both negligent conduct and causation.Factual Cause the defendant's conduct was the actual cause of, or a substantial factor in causing, the injuryBut-for-test used to determine factual causation; the injury would not have happened but-for the defendants negligent conduct 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.9Scope of Liability (Proximate Cause)Foreseeability no liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongsSuperseding Cause an intervening act that relieves the defendant of liability

2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.10Harm Burden of Proof plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interestHarm to Legally Protected Interest courts determine which interests are protected from negligent interference

2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.11Defenses to Negligence Contributory Negligence failure of a plaintiff to exercise reasonable care for his own protection, which in a few states prevents the plaintiff from recovering anythingComparative Negligence damages are divided between the parties in proportion to their degree of negligence; applies in almost all statesAssumption of Risk plaintiff's express consent to encounter a known danger, some states still apply implied assumption of the risk

2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.12Defenses to a Negligence ActionIs defendant negligent?Has plaintiff assumed the risk?Defendant prevailsDefendant prevailsDefendant losesIs plaintiff contributorily negligent?Is there comparative negligence?Did defendant have a last clear chance?Defendant prevailsDefendant losesDamages are apportionedYesNoNoYesNoNoYesYesYesNo 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.13Strict Liability Definition liability for nonintentional and nonnegligent conduct; based on the dangerous nature of the activity and not on any particular faultActivities Giving Rise to Strict LiabilityAbnormally Dangerous Activities involve a high degree of serious harm and are not matters of common usageKeeping of Animals strict liability is imposed for wild animals and usually for trespassing domestic animals 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.14Defenses to Strict Liability Contributory Negligence is not a defense to strict liabilityComparative Negligence most states apply this doctrine to some types of liability casesAssumption of Risk Under Second Restatement, is a defense to an action based upon strict liability if the assumption is voluntary. Under Third Restatement, this defense is limited to only cases where the assumption is expressed, as in a contract. If the plaintiff receives some benefit, this is not a defense. 2014 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.15