1. Torts: Negligence and Strict Liability OBE 118, Section 3, Fall 2004 Professor McKinsey When a wrong was not intended but creates liability nonetheless

2. Elements of Negligence Duty of care (Damages) Breach of the duty of care Injury (Actual cause) Proximate cause

3. Duty of care Act as carefully as The Reasonable Person would under similar circumstances Was the harm that resulted foreseeable?

4. Proximate Cause Is it fair to say the act was the cause? Factors “Fairness”

5. Summary of Basic Negligence Duty of care Breach of the duty of care Injury (Actual cause) Proximate cause (Damages)

6. Special Effects on Liability Intervening Causes Shared Responsibility A separate event between defendants act and plaintiff’s injury

7. Special Forms of Negligence Res ipsa loquitor Negligence per se An act that is “automatically” negligence Some The thing speaks for itself – Premises Liability

8. Duty of care is determined with an additional factor: the injured person’s status on the premises: –Trespasser to land –Licensee (Guests of homeowners) –Invitees (Customers at business premises)

9. Premises Negligence Licensee Invitee Trespassers Minimal duty Young children are exception No traps or spring guns Must warn of human-made risks not likely to discover Must warn of known risks or fix them High duty of care Must inspect premises

10. Defenses to Negligence Assumed the risk Comparative negligence

11. Strict Liability vs. Other Types of Torts Intentional Torts Negligence Strict Liability Did Actor Intend Act or the Harm that resulted from the act? Would a Reasonable Person Do the act that caused the harm? Did an injury occur?

12. Strict Liability No need to prove intent or negligence Often no concern about fault at all Three Basic Examples – Ultra Hazardous Activities – Worker’s Compensation – Product Liability

13. Ultra-hazardous Activities Harboring wild animals Mining Explosives

14. PL based on Strict Liability 3. Product unreasonably dangerous* 1. D sold product in defective condition 2. D normally in business of selling product 4. P suffers physical harm through use of product 5. Defective condition is proximate cause 6. No substantial changes to product since sold (Based on the Restatement (2 nd ) of Torts)

15. What is a Defective Product? 1) Actual defect (flaw in manufacturing). 3 General Ways a Product can be Defective 2) Design defect. 3) Failure to warn. Product built as designed, design had defect. Product not built as intended. A different approach usually used when product had dangers inherent to purpose or type of product.