© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Tortfeasor does not intend the consequences of the act or believes they will occur.  Actor’s conduct merely creates a foreseeable risk of injury.  2

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Analysis:  Duty: Defendant owed Plaintiff a duty of care;  Breach: Defendant breached that duty;  Causation: Defendant’s breach caused the injury;  Damages: Plaintiff suffered legal injury. 3

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about.  A foreseeable risk is one in which the reasonable person would anticipate and guard against it. 4

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Duty of Landowners to warn invitees, exercise reasonable care.  Landlords owe duty of reasonable care to tenants and guests for common areas such as stairs and laundry rooms.  CASE 7.1 McClain v. Octagon Plaza, LLC. (2008). Can a landlord be liable for negligent misrepresentation about the size of a leased space? 5

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Duty of Landowners (continued).  Duty to Warn Business Invitees of Foreseeable Risks (knew or should have known).  EXCEPTION: Obvious Risks. 6

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Duty of Professionals.  Professionals may owe higher duty of care based on special education, skill or intelligence.  Breach of duty is called professional malpractice. 7

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  No Duty to Rescue.  Law requires individuals to act reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust.  However, if rescue is attempted, the law requires due care and follow through. 8

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Causation is both:  Causation in Fact, and  Proximate Cause. 9

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway?  Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred. 10

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability.  CASE 7.2 Palsgraf v. Long Island Railroad Co. (1928). Were the plaintiff’s injuries foreseeable? 11

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  To recover, Plaintiff must show legally recognizable injury.  Compensatory Damages are designed to reimburse Plaintiff for actual losses.  Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing. 12

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Assumption of Risk.   Superseding Intervening Cause .  Contributory or Comparative Negligence.  13

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Plaintiff has knowledge of the risk, and voluntarily engages in the act anyway.  Defense can be used by participants, as well as spectators and bystanders.  14

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Assumption of the risk can be express or implied.  Express by agreement.  Implied by plaintiff’s knowledge of risks and subsequent conduct.  CASE 7.3 Pfenning v. Lineman (2010). Is the driver of a beverage cart a “participant” at a golfing event? 15

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  A unforeseeable, intervening act that breaks the causal link between Defendant’s act and Plaintiff’s injury, relieving Defendant of liability. 16

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Under common law doctrine of contributory negligence, if Plaintiff in any way caused his injury, he was barred from recovery.  Most states have replaced contributory negligence with the doctrine of comparative negligence.  17

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Comparative negligence computes liability of Plaintiff and Defendant and apportions damages.  Pure Comparative Negligence States (California and New York): allows Plaintiff to recover even if his liability is greater than that of Defendant. 18

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Modified Comparative Negligence States: percent of damages Plaintiff causes herself are subtracted from the total award.  50 Percent Rule: Plaintiff recovers only if liability is less than 50%.  51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50%. 19

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Res Ipsa Loquitur.  Facts and circumstances create presumption of negligence by Defendant.  Burden of proof shifts to Defendant to show he was not negligent. 20

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Negligence Per Se occurs when Defendant violates a statute designed to protect Plaintiff:  Statute sets out standard of care.  Plaintiff is member of class intended to be protected by statute.  Statute designed to prevent Plaintiff’s injury. 21

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  “Danger Invites Rescue” Doctrine.  Good Samaritan Statutes.  Dram Shop Acts. 22

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Development of Strict Liability.  Theory of strict liability started with Rylands v. Fletcher (1868 England).  Defendant’s liability for strict liability is without regard to: Fault, Foreseeability, Standard of Care or Causation.  Strict liability based on abnormally dangerous activities is one application.  23

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Ultraharzardous or abnormally dangerous activities:  Involve serious potential harm;  Involve high degree of risk that cannot be made safe; and  Are not commonly performed in the community or area. 24

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Wild Animals:  Persons who keep wild animals are strictly liable for injuries caused by the beast.  Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous. 25

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Product Liability: manufacturers can be found liable without regard to fault (see Chapter 22).  Bailments: when goods temporarily transferred to another (see Chapter 49). 26