This document provides an overview of negligence and strict liability in tort law. It defines the elements of negligence as duty, breach of duty, causation, and injury. It discusses the duty of care and reasonable person standard. It covers defenses like contributory negligence, assumption of risk, and causation principles like res ipsa loquitur. Special doctrines of premises liability, negligence per se, and strict liability are also summarized. The document aims to teach readers about the key concepts in negligence and strict liability tort claims.
3. Learning Objectives
The Elements of Negligence
Defenses to Negligence
Special Doctrines Related to Negligence
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4. Negligence
The elements of a negligence claim are
Defendant owed a duty of care to plaintiff,
Defendant committed a breach of duty,
Breach was actual and proximate cause of
Injury experienced by the plaintiff
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5. Duty of Due Care
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
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6. Williams v. Cingular Wireless
Facts & Procedural History:
Plaintiff was injured by a driver using a cell
phone provided by Cingular
Plaintiff sued Cingular for negligence in
providing the cell phone
Trial court dismissed case; Plaintiff appealed
Issue:
Did Cingular owe a duty of care to plaintiff?
Without a duty, there can be no breach
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7. Williams v. Cingular Wireless
Law Applied to Facts:
Defendant had no relationship to plaintiff so
as to create a duty
Little or no foreseeability that the sale of a cell
phone would cause plaintiff’s injury
Imposing a duty on defendant would not be
sound public policy
Holding:
Dismissal of claim against Cingular affirmed
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8. Breach of Duty of Due Care
If a duty existed, 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
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9. Scully v. Fitzgerald
Facts & Procedural History:
Plaintiff leased store property from defendant
Debris in adjacent building owned by defendant
caught fire and fire damaged plaintiff’s property
Plaintiff sued defendant alleging that defendant
failed to use reasonable care in maintaining the
adjacent building
Issue:
Did defendant landlord breach a duty of care to
the plaintiff tenant?
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10. Scully v. Fitzgerald
Legal Reasoning:
Landowner may be liable for fire if property kept
in unsafe condition and owner did not take
reasonable precautions to prevent harm
Test: would reasonably prudent person recognize
and foresee an unusual risk or likelihood of harm?
Defendant’s exposed collection of papers and
refuse was flammable and potentially dangerous
Holding:
Trial court erred in denying jury the opportunity
to decide if defendant breached a duty to plaintiff
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11. Causation and Injury
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
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12. Causation and Injury
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.
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13. Causation and Injury
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
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14. Defenses:
Contributory Negligence
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
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15. Comparative Negligence
Contributory negligence used
to be a complete defense, but
most states enacted comparative
negligence systems in which a
court or jury will determine
relative negligence of parties
and award damages in
proportion to the degrees of
negligence
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16. Defenses:
Assumption of Risk
Assumption of risk is the
plaintiff’s voluntary
consent to a known danger
Example: plaintiff goes
snowboarding and
breaks leg during a fall
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17. Defenses:
Assumption of Risk
One can expressly assume the risk of injury
by entering into a contract that attempts to
relieve the defendant of a duty of care
otherwise owed to plaintiff
Such contract provisions are called exculpatory
clauses
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18. Davenport v.
Cotton Hope Plantation
Facts & Procedural History:
Plaintiff leased condo at defendant’s resort and
told defendant stairway floodlights inoperable
Plaintiff injured when trying to ascend stairs in
dark
Trial court directed a verdict against plaintiff
because he assumed the risk of his injury
Intermediate appellate court reversed because
under state’s comparative negligence system,
assumption of risk was a factor to be considered
by a jury in determining relative fault
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19. Davenport v.
Cotton Hope Plantation
Issue:
Whether assumption of risk survives as a
complete bar to recovery under South
Carolina’s comparative negligence system?
Legal Reasoning and Holding:
A plaintiff is not barred from recovery by
assumption of risk unless plaintiff’s degree of
fault is greater than the negligence of the
defendant
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21. Premises Liability Cases
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
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22. Premises Liability Cases
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
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23. Delgado v. Trax Bar & Grill
Facts & Procedural History:
Patron of Trax causing serious physical injury to
plaintiff defendant’s parking lot
Patron convicted of assault, filed for bankruptcy
Plaintiff sued defendant for negligence and
premises liability theory
Jury found for plaintiff and awarded damages
Issue:
Did defendant owe a duty of care to the plaintiff?
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24. Delgado v. Trax Bar & Grill
Legal Reasoning and Holding:
A special relationship is an exception to the
general no-duty-to-protect rule
Plaintiff was invitee, thus special relationship
existed
Proprietor’s general duty owed to invitees
includes duty to take reasonable steps to
secure common areas against foreseeable
criminal acts of third parties that are likely to
occur in the absence of such precautionary
measures
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25. Negligence Per Se
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
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26. Hargis v. Baize
Facts & Procedural History:
Widow of deceased employee sued defendant
employer (Baize) alleging that a fatal accident was
caused by the employer’s failure to comply with a
state safety regulation
Employer’s representative admitted: (a) not
company policy to comply with regulation, (b)
insurance representative visited two weeks before
incident and recommended compliance, and (c)
another employee recently injured similarly
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27. Hargis v. Baize
Holding:
Negligence per se principle applies and
enables plaintiff to satisfy first two elements
of negligence: duty and breach of duty
Jury would need to determine the remaining
elements of negligence
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28. Strict Liability
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
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29. Strict Liability
Imposing strict liability is a social policy
decision that risk associated with an activity,
especially an abnormally dangerous activity,
should be borne by those who pursue it,
rather than by innocent persons who are
exposed to that risk
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30. Test Your Knowledge
True=A, False = B
A duty of due care may arise only if a
contract or statute creates such a duty
Without a duty, there can be no breach
Res ipsa loquitur means the thing speaks for
itself and is related to causation
Negligence per se occurs when a plaintiff
contributed to his or her own injury
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31. Test Your Knowledge
True=A, False = B
Contributory negligence and comparative
negligence mean the same thing
Assumption of risk is the plaintiff’s
voluntary consent to a known danger
Imposing strict liability is a social policy
decision
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32. Test Your Knowledge
Multiple Choice
The elements of a negligence claim include:
(a) duty of due care
(b) breach of the duty of due care
(c) causation (actual and proximate)
(d) injury to plaintiff
(e) all of the above
The reasonable person test focuses on:
(a) Defendant’s behavior
(b) Defendant’s intent
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33. Test Your Knowledge
Multiple Choice
The causation element requires proof of:
(a) actual cause (the “but for” test)
(b) proximate cause
(c) sufficient cause
(d) both (a) and (b), but not (c)
A property owner or tenant must exercise
reasonable care for the safety of his/her:
(a) Invitees
(b) Licensees
(c) Trespassers
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This case is similar in nature to the cases in which citizens injured by guns sued gun manufacturers.
An example of reckless behavior that may harm another is an intoxicated driver in a vehicle who injures another person. The driver intentionally drove in an intoxicated condition, but intended no harm to result. However, the driver’s intent is irrelevant – only the behavior of driving drunk and the end result is relevant to the determination of negligence.
Interim Personnel of Central Virginia, Inc. v. Messer: Ricky Edward East was intoxicated and caused a motor vehicle accident. Messer was injured as a result. The Alumni Association of the University of Virginia (Association) owned the truck that East was driving when the collision occurred. At the time, East was employed by Interim Personnel of Central Virginia, Inc. (Interim). According to the job description for the Association position held by East, “a valid Virginia driver’s license” was required, but East did not have a valid driver’s license as a result of his two criminal convictions for driving under the influence of intoxicants (DUI). When East applied to work for Interim, he falsely stated that he possessed a driver’s license. Interim personnel interviewed East, had him perform certain skills tests, and did some checking of his references. Interim then hired East. Interim did not perform criminal background checks on applicants and did not quest a copy of East’s driving record from the Department of Motor Vehicles. Relying on Interim to verify that East was a licensed driver, the Association accepted East. On the Wednesday of Thanksgiving week, East was told to keep a key to the alumni building. Because he had access to the building, East was able to procure a key to the truck he routinely operated. Messer filed a negligence lawsuit against East, Interim, and the Association in an effort to collect damages for the injuries she sustained in the collision. Negligent hiring was the specific theory she employed with regard to Interim and the Association. After hearing the evidence and receiving legal instructions from the trial judge on proximate cause, foreseeability, and other negligence principles, the jury returned a verdict in favor of Messer and against all of the defendants. The defendants were held liable for $100,000 in compensatory damages. In addition, East was held liable for $25,000 in punitive damages. When the trial judge denied their motions to set aside the verdict, Interim and the Association (though not East) appealed to the Supreme Court of Virginia. Supreme Court of Virignia’s reasoning: The cause of action for negligent hiring “is based on the principle that one who conducts an activity through employees is subject to liability for harm resulting from the employer’s conduct if the employer is negligent in the hiring of an improper person in work involving an unreasonable risk of harm to others.” The tort of negligent hiring is distinct from tort liability predicated upon the doctrine of respondeat superior. Under the latter, an employer is vicariously liable for an employee’s acts committed within the scope of employment. In contrast, the tort of negligent hiring is a doctrine of primary liability; the employer is principally liable for placing an unfit individual in an employment situation that involves an unreasonable risk of harm to others. Negligent hiring enables a plaintiff to recover in circumstances when respondeat superior’s “scope of employment” limitation protects employers from liability. The evidence is clear that neither Interim nor the Association had actual knowledge of East’s propensities for operating a motor vehicle without a valid operator’s license. The question then becomes whether those defendants should have discovered these propensities by reasonable investigation. According to the uncontradicted evidence, East’s employment history showed he had been a model employee, never had consumed alcohol at work or reported for work intoxicated, never had been in any motor vehicle accidents, never had taken any item from any employer without permission, and had no record of theft. In sum, it was not Interim’s placement of East, or his subsequent acceptance for work at the Association, which was a proximate cause of the plaintiff’s injuries. Consequently, we conclude that the trial court erred in ruling that foreseeability was a jury issue, and in refusing to sustain Interim’s and the Association’s respective motions to set the verdict aside. Thus, final judgment will be entered here in favor of those defendants.
Stahlecker v. Ford Motor Co. is the case in which Firestone tires failed on a Ford Explorer and rendered the vehicle inoperable. A criminal abducted, raped, and murdered the female driver of the vehicle. Her parents filed suit against the criminal, Ford, and Firestone. The district court dismissed Ford and Firestone because the criminal acts constituted an intervening cause that would relieve Ford and Firestone of any liability they might otherwise have had. The parent plaintiffs appealed and the state supreme court affirmed the district court’s dismissal of the corporate defendants, stating: “We have found no authority recognizing a duty on the part of the manufacturer of a product to protect a consumer from criminal activity at the scene of a product failure where no physical harm is caused by the product itself.”
Res ipsa loquitur is not only a wonderful phrase for cocktail conversations, but common doctrine used in malpractice cases since the defendants typically have an advantage with regard to evidence
The formula for comparative negligence is: Plaintiff ’s recovery = defendant’s percentage share of the negligence causing the injury X plaintiff’s proven damages. In the famed McDonald’s coffee case, the jury determined that Stella Liebeck was 20% at fault for her injury caused by a spill of unreasonably hot coffee, thus reduced her damage award by 20%. The jury awarded Leibeck $200,000 in compensatory damages for her multiple surgeries and skin grafts. The amount reduced to $160,000 because jury found Liebeck 20% at fault for spill. The jury awarded punitive damages of $2.7 million (2 days of McDonald’s coffee sales), but the trial court reduced punitive award to $480,000.
The key to assumption of risk claims is that the plaintiff KNEW of the danger. Therefore, if a plaintiff undertakes a dangerous or risky activity, then the plaintiff is liable for foreseeable injuries. In the snowboarding case, common injuries include broken bones. However, plaintiffs have won lawsuits in which they undertook a risky activity but did not suffer foreseeable injuries. For example, a defendant ski resort may be liable if a snowboarder’s injury was caused by a fall onto an object hidden by snow, which was known to be a danger by the resort operators and which did not have a sign or protective fence to warn invitees of the hidden danger.
Opportunity to discuss with students about whether companies should be responsible to consumers for defective products and get students to relate ethical decision making to product design and manufacturing decisions
False. A special relationship (property owner and invitee, lawyer and client, doctor and patient, etc.) may create a duty of due care. True. True. False. Negligence per se refers to a situation in which a defendant violates a regulation and is therefore “negligent per se.” Contributory negligence occurs when a plaintiff contributes to his or her own injury.
False. True. True.
The correct answer is (e) The correct answer is (a)
The correct answer is (d) The correct answer is (a).
Class discussion Relevant facts that expose the “tort reform” myths: Tort claims account for only 5% of the 19.7 million civil claims filed in state courts ( Nat’l Center for State Courts, 1992 ) Products liability cases account for 4% of all tort cases in state courts ( Nat’l Center for State Courts, 1992 ) Business cases (financial damages) account for 47% of all punitive damage awards (Rand Institute for Civil Justice, 1996) In contrast, only 4.4% and 2% of punitive damage awards are due to product liability and medical malpractice cases respectively (Rand Institute for Civil Justice, 1996) Businesses suing each other over contracts comprised nearly half of all federal court cases filed between 1985 and 1991 (The Wall Street Journal, 12/93) Contract and property cases - most involving business - comprise more than 1/3 of all civil cases in state courts; by comparison, only 0.21% of all civil cases were product liability claims (National Center for State Courts, 1995)