1. C H A P T E R
Negligence and
07
Strict Liability
Mistakes are a
fact of life.
It is the response
to error that
counts.
Nikki Giovanni
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2. Learning Objectives
• Identify the elements of negligence
• Define the reasonable care standard
and the role of foreseeability
• Explain whether a defendant has
breached a duty of reasonable care
and applicable defenses
• Understand special doctrines and
injuries in the law of negligence
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3. Negligence
• Elements of a negligence
claim are:
2. Defendant owed a duty of
care to plaintiff,
3. Defendant committed a
breach of duty,
4. Breach was actual and
proximate cause of the injury
experienced by plaintiff
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4. 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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5. Raleigh v. Performance Plumbing and
• Facts & Procedural History:
– Plaintiffs sued defendant for damages they
suffered in an automobile accident caused
by Weese, a Performance Plumbing
employee
– Weese was driving his own truck on way home
from work when he caused the accident
– Jury found that Weese was not acting within
the scope of his employment for defendant
company when he caused injury to plaintiffs
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6. Raleigh v. Performance Plumbing
and Heating, Inc.
• Issue:
– Did defendant owe plaintiff a duty of care?
• Without a duty, there can be no breach
• Law Applied to Facts:
– Employee was not acting in the course and
scope of employment at time of accident, so
defendant had no legal duty to plaintiffs
• Holding:
– Judgment affirmed
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7. Breach of Duty of Due Care
• 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
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8. Currie v. Chevron U.S.A., Inc.
• Facts & Issue:
– Plaintiff filed wrongful death suit against defendant
company on theory that Chevron’s employee
negligently authorized the gas pump used by a
third party and plaintiff’s daughter died as a result
– Issue: Did district court err in denying Chevron’s
motion for judgment as matter of law?
• Holding:
– Jury question existed whether event was
reasonably foreseeable, thus duty of care arose
– District court did not err; judgment affirmed
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9. Special Doctrines
• Premises liability
• Negligence Per Se
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10. 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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11. 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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12. Kroger Co. v. Plonski
• Facts & Trial Court Ruling:
– Plonski, a business invitee, sued Kroger for
negligence after she was assaulted in store's
parking lot by an unknown assailant
– Kroger moved for summary judgment
arguing that the assault was not by a patron
and was not foreseeable, thus a duty to
protect the invitee did not arise
– Trial court denied summary judgment motion
and Kroger appealed
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13. Kroger Co. v. Plonski
• Indiana Supreme Court Holding:
– Fact finder (jury) must determine whether
Kroger should have done more to protect its
business invitees from foreseeable criminal
activity, such as providing adequate security
– Trial court properly denied Kroger’s motion for
summary judgment
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14. 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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15. Kaltman v. All American Pest
Control, Inc.
• Facts & Procedural History:
– Plaintiffs retained defendant to treat and
prevent pest infestation in their residence,
but employee used pesticide not approved
for residential use, resulting in damages
– Defendants argued that any duties were
contract-based, not based in negligence
– Trial court agreed and plaintiffs appealed
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16. Kaltman v. All American Pest
Control, Inc.
• Supreme Court of Virginia Ruling:
– Primary consideration of tort law is protection of
persons and property from injury; plaintiffs seek
this protection
– Just because application of pesticide is included
in defendant’s contract does not mean plaintiffs
contracted away common law or statutory rights
– Defendants violated state law and plaintiffs are
members of the class of persons for whose benefit
the statute was enacted
– Reversed and remanded
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17. 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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18. 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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19. Black v. William Insulation Co.
• Issue:
– Did trial court err in failing to recognize a duty of
care from an employer to innocent third parties
who are injured its employees who are exhausted
due to working conditions imposed by employer
• Facts:
– Injuries were not “natural and probable” result of
any negligent acts by defendant, but by decisions
and conduct of the employee
– No foreseeability, thus no duty
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20. 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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21. 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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22. Comparative Negligence
• 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. Jack
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23. Defenses:
Assumption of Risk
• 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
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24. Special Doctrines
• Strict Liability
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25. 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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26. Strict Liability
• 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
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27. 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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28. 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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29. 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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30. 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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31. Thought Question
• Does tort law have a useful purpose in
society? Do the remedies make sense?
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