Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. and the Legal Environment, 10 th edition by Richard A. Mann & Barry S. Roberts Essentials of Business Law and the Legal Environment, 10 th edition by Richard A. Mann & Barry S. Roberts

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Topics Covered Chapter 8: Negligence and Strict Liability I. Negligence A. Breach of Duty of Care B. Factual Cause C. Harm D. Defenses to Negligence II. Strict Liability A. Activities Giving Rise to Strict Liability B. Defenses to Strict Liability

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Breach of Duty of Care n Definition of Negligence – conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. n Reasonable Person Standard – degree of care that a reasonable person would exercise in a given situation. n Duty to Act – except in special circumstances, no one is required to aid another in peril.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Negligence and Negligence Per Se Does D’s 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 D’s conduct reasonable under the circumstances? D is not liable. Yes No Yes No Yes No

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Reasonable Person Standard n Children and those with a physical disability – must conform to conduct of a reasonable person of like age, disability, intelligence, and experience. n Mental Disability – the reasonable person standard applies despite the disability. n Superior Skill or Knowledge – professionals must exercise the same care and skill normally possessed by members of their professions. n Emergencies – the reasonable person standard applies, but the emergency is considered part of the circumstances.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Duties of Possessors of Land n Duty to Trespassers – not to injure intentionally. n Duty to Licensees – to warn of known dangerous conditions licensees are unlikely to discover for themselves. n Duty to Invitees – to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Duties of Possessors of Land Duty to Invitee only To 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 discover Duty to Trespasser (and all others) Not to injure intentionally

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Cause n Res Ipsa Loquitur – permits the jury to infer both negligent conduct and causation. n Factual Cause– the defendant's conduct was the actual cause of, or a substantial factor in causing, the injury.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Scope of Liability n Unforeseeable Consequences – no liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongs. n Superseding Cause – an intervening act that relieves the defendant of liability.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Harm n Harm to Legally Protected Interest – courts determine which interests are protected from negligent interference.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Defenses to Negligence n Contributory Negligence – failure of a plaintiff to exercise reasonable care for his own protection, which in a few States prevents the plaintiff from recovering anything. n Comparative Negligence – damages are divided between the parties in proportion to their degree of negligence; applies in almost all States. n Assumption of Risk – plaintiff's express consent to encounter a known danger, some states still apply implied assumption of the risk.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Defenses to a Negligence Action Is defendant negligent? Has plaintiff assumed the risk? Defendant prevails Defendant loses Is plaintiff contributorily negligent? Is there comparative negligence? Did defendant have a last clear chance? Defendant prevails Defendant loses Damages are apportioned Yes No Yes No Yes No

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Strict Liability n Definition – absolute liability, or liability even without fault. n Activities Giving Rise to Strict Liability – Abnormally Dangerous Activities – involve a high degree of serious harm and are not matters of common usage. –Keeping of Animals – strict liability is imposed for wild animals and usually for trespassing domestic animals.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Defenses to Strict Liability n Contributory Negligence – is not a defense to strict liability. n Comparative Negligence – may apply and reduce plaintiff’s recovery. n Assumption of Risk – Restatement Third eliminates assumption of risk as a defense in most strict liability cases.