P A R T 2 Crimes Torts Crimes

P A R T 2 Crimes & Torts Crimes Intentional Torts Negligence & Strict Liability Intellectual Property & Unfair Competition Mc. Graw-Hill/Irwin Business Law, 13/e © 2007 The Mc. Graw-Hill Companies, Inc. All rights

C H A P T E R 7 Negligence & Strict Liability “Mistakes are a fact of life. It is the response to error that counts. ” Nikki Giovanni

Learning Objectives v The Elements of Negligence v Defenses to Negligence v Special Doctrines Related to Negligence 7 -4

Negligence v The elements of a negligence claim are Defendant owed a duty of care to plaintiff, w Defendant committed a breach of duty, w Breach was actual and proximate cause of w Injury experienced by the plaintiff w 7 -5

Duty of Due Care v 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 w 7 -6 A duty may arise if a special relationship existed between the parties w Examples of a special relationship: doctorpatient, lawyer-client, accountant-client

Williams v. Cingular Wireless v Facts & Procedural History : Plaintiff was injured by a driver using a cell phone provided by Cingular w Plaintiff sued Cingular for negligence in providing the cell phone w Trial court dismissed case; Plaintiff appealed w v Issue : w Did Cingular owe a duty of care to the plaintiff? w 7 -7 Without a duty, there can be no breach

Williams v. Cingular Wireless v Law Applied to Facts : Defendant had no relationship to plaintiff so as to create a duty w Little or no foreseeability that the sale of a cell phone would cause plaintiff’s injury w Imposing a duty on defendant would not be sound public policy w v Holding w 7 -8 : Dismissal of claim against Cingular affirmed

Breach of Duty of Due Care v 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 w Reasonable person standard v The test focuses on defendant’s behavior, not defendant’s intent w reckless behavior may be unreasonable 7 -9

Scully v. Fitzgerald v Facts & Procedural History : w Plaintiff leased store property from defendant w Debris in an adjacent apartment building owned by defendant caught fire and the fire damaged plaintiff’s property w Plaintiff sued defendant alleging that defendant failed to use reasonable care in maintaining the apartment building v Issue : w Did defendant landlord breach a duty of care to the plaintiff tenant? 7 - 10

Scully v. Fitzgerald Legal Reasoning : w Landowner may be liable for fire if property kept in unsafe condition and owner did not take reasonable precautions to prevent harm w Test: would reasonably prudent person recognize and foresee an unusual risk or likelihood of harm? w Defendant’s exposed collection of papers and refuse was flammable and potentially dangerous v Holding : w Trial court erred in denying jury the opportunity to decide if defendant breached a duty to plaintiff v 7 - 11

Causation and Injury v Injuries may include bodily or emotional injury, and property or economic damage v 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) w Proximate cause : plaintiff’s injury was foreseeable consequence of defendant’s act or omission w w 7 - 12 Interim Personnel of Central Virginia, Inc. v. Messer

Causation and Injury v An event that occurs after initial breach of duty may worsen a plaintiff’s injury w Example: plaintiff injured in accident and while unconscious, a thief steals the plaintiff’s wallet v If latter event is foreseeable, defendant will be deemed liable v If latter event not foreseeable, defendant will be absolved from liability w 7 - 13 Example: Stahlecker v. Ford Motor Co.

Causation and Injury v An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself) v Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) the harm would not occur in the absence of negligence, and (3) plaintiff was not responsible for his own injury w Example: after abdominal surgery, patient complains of pain in abdomen and X-ray shows surgical clamp left in abdomen 7 - 14

Defenses: Contributory Negligence v Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety w v Example: auto accident in which defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully Contributory negligence used to be a complete defense, but most states adopted comparative negligence systems in which court will determine the relative negligence of parties and award damages in proportion to the degrees of negligence 7 - 15

Defenses: Assumption of Risk of risk is the plaintiff’s voluntary consent to a known danger v Assumption w 7 - 16 Example: plaintiff goes snowboarding and breaks leg during a fall

Defenses: Assumption of Risk v 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 w 7 - 17 Such contract provisions are called exculpatory clauses

Davenport v. Cotton Hope Plantation v Facts & Procedural History : w Plaintiff leased condo at defendant’s resort and told defendant stairway floodlights inoperable w Plaintiff injured when trying to ascend stairs in dark w Trial court directed a verdict against plaintiff because he assumed the risk of his injury w 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 7 - 18

Davenport v. Cotton Hope Plantation v Issue : w Whether assumption of risk survives as a complete bar to recovery under South Carolina’s comparative negligence system? v Legal w 7 - 19 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

Special Doctrines v Premises liability v Negligence Per Se v Strict Liability 7 - 20

Premises Liability Cases Based on the duty a property owner or tenant has to those on the property v Duty varies with type of person on the property w Invitee (business visitor or member of the public): owner or tenant must exercise reasonable care for safety of his/her invitees w Licensee (those on property for his own purpose): owner or tenant obligated only to warn licensee of hidden, dangerous conditions w Trespasser : owner or tenant owes no duty, but may not willfully injure trespassers v 7 - 21

Delgado v. Trax Bar & Grill v Facts & Procedural History : Patron of Trax causing serious physical injury to plaintiff defendant’s parking lot w Patron convicted of assault, filed for bankruptcy w Plaintiff sued defendant for negligence and premises liability theory w Jury found for plaintiff and awarded damages w v Issue : w 7 - 22 Did defendant owe a duty of care to the plaintiff?

Delgado v. Trax Bar & Grill v Legal Reasoning and Holding : w A special relationship is an exception to the general no-duty-to-protect rule w Plaintiff was invitee, thus special relationship existed w 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 7 - 23

Negligence Per Se v 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 w (2) suffered harm of a sort that the statute or other law was intended to protect against w 7 - 24

Hargis v. Baize v 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 w Employer’s representative admitted: w w 7 - 25 not company policy to comply with regulation, (b) insurance representative visited two weeks before incident and recommended compliance, and (c) another employee was recently injured in similar accident

Hargis v. Baize : w Negligence per se principle applies and enables plaintiff to satisfy the first two elements of negligence, duty and breach of duty w Jury would need to determine the remaining elements of negligence v Holding 7 - 26

Strict Liability without – or irrespective – of fault v Thus, a defendant is liable even though s/he did not intend to cause harm and did not act recklessly or negligently v 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 v w 7 - 27 Basis for product liability cases

Test Your Knowledge v True=A, w w 7 - 28 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

Test Your Knowledge v True=A, False = B w Contributory negligence and comparative negligence mean the same thing w Assumption of risk is the plaintiff’s voluntary consent to a known danger w Imposing strict liability is a social policy decision 7 - 29

Test Your Knowledge v Multiple w The elements of a negligence claim include: w w w Choice (a) (b) (c) (d) (e) duty of due care breach of the duty of due care causation (actual and proximate) injury to plaintiff all of the above The reasonable person test focuses on: (a) Defendant’s behavior w (b) Defendant’s intent w 7 - 30

Test Your Knowledge v Multiple w The causation element requires proof of: (a) w (b) w (c) w (d) w w Choice actual cause (the “but for” test) proximate cause sufficient cause both (a) and (b), but not (c) A property owner or tenant must exercise reasonable care for the safety of his/her: (a) Invitees w (b) Licensees w (c) Trespassers w 7 - 31

Thought Question v Do you think tort reform is necessary? 7 - 32