By Richard A. Mann & Barry S. Roberts Business Law and the Regulation of Business Chapter 8: Negligence & Strict Liability By Richard A. Mann & Barry S. Roberts

Topics Covered in this Chapter I. Negligence A. Breach of Duty of Care B. Proximate Cause C. Injury D. Defenses to Negligence II. Strict Liability A. Activities Giving Rise to Strict Liability B. Defenses to Strict Liability

Breach of Duty of Care Definition of Negligence – conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. Reasonable Person Standard – degree of care that a reasonable person would exercise in a given situation. Duty to Act – except in special circumstances, no one is required to aid another in peril.

Negligence and Negligence Per Se Does D’s conduct violate any statute? No Yes Was D’s conduct reasonable under the circumstances? Does the statute expressly provide for civil liability? No Yes Yes Is the statute intended to protect a class of persons, which includes P, from that type of hazard and harm? No D is not liable. Yes No D is liable if causation and protected harm are proven.

Reasonable Person Standard Children and those with a physical disability – must conform to conduct of a reasonable person of like age, disability, intelligence, and experience. Mental Deficiency – the reasonable person standard applies despite the disability. Superior Skill or Knowledge – professionals must exercise the same care and skill normally possessed by members of their professions. Emergencies – the reasonable person standard applies, but the emergency is considered part of the circumstances.

Duties of Possessors of Land Duty to Trespassers – not to injure intentionally. Duty to Licensees – to warn of known dangerous conditions licensees are unlikely to discover for themselves. Duty to Invitees – to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover.

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

Cause Res Ipsa Loquitur – permits the jury to infer both negligent conduct and causation. Proximate Cause Causation in Fact – the defendant's conduct was the actual cause of, or a substantial factor in causing, the injury.

Proximate Cause No Yes No Proximate Cause No Yes Proximate Cause Is there causation in fact? No Yes No Proximate Cause No Is the harm foreseeable? Yes Proximate Cause

Limitations on Causation in Fact Unforeseeable Consequences – no liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongs. Superseding Cause – an intervening act that relieves the defendant of liability.

Injury Harm to Legally Protected Interest – courts determine which interests are protected from negligent interference. Burden of Proof – plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest.

Defenses to Negligence 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. Comparative Negligence – damages are divided between the parties in proportion to their degree of negligence; applies in almost all States. Assumption of Risk – plaintiff's express consent to encounter a known danger, some states still apply implied assumption of the risk.

Defenses to a Negligence Action No Is defendant negligent? Defendant prevails Yes Yes Has plaintiff assumed the risk? Defendant prevails No No Is plaintiff contributorily negligent? Defendant loses Yes Yes Is there comparative negligence? Damages are apportioned No Yes Defendant loses Did defendant have a last clear chance? No Defendant prevails

Strict Liability Definition – liability for nonintentional and nonnegligent conduct. 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. Products Liability – imposed upon manufacturers and merchants who sell goods in a defective condition unreasonably dangerous to the user.

Defenses to Strict Liability Contributory Negligence – is not a defense to strict liability. Comparative Negligence – most States apply this doctrine to products liability cases. Assumption of Risk – is a defense to an action based upon strict liability.