1. Business Law I
Negligence and
Strict Liability

2. Negligence “The Unintentional Tort”
To win a negligence case, the plaintiff must prove that the defendant failed in five areas:
Duty of due care -- there must be a duty owed to the plaintiff.
Breach -- duty must be breached.
Factual cause -- the injury must have been caused by the defendant’s actions.
Foreseeable harm (Proximate cause) -- it must have been foreseeable that the action would cause this kind of harm.
Injury -- the plaintiff must have been hurt.

3. Duty of Due Care
If a Defendant could have foreseen injury to a particular person, he/she has a duty to him.
In some states, a social host serving alcohol to an adult may be found liable for harm done by the person drinking the alcohol.
Many states have a “dram act,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm.

4. Case Analysis Duty of Due Care
Palsgraf v. Long Island Railroad Co., New York Court of Appeals, 1928
Facts
Issue
Decision
Reasoning
Discussion

5. Case Analysis Duty of Due Care
Hernandez v. Arizona Board of Regents, 177 Ariz. 244, 866 P.2d 1330, 1994 Ariz. Lexis 6, Arizona Supreme Court, 1994
Facts
Issue
Decision
Reasoning
Discussion

6. Duty of Landowners Duty to Trespassers – not to injure intentionally.
Duty to Children – if a man-made item on the land attracts children, landowner may be liable.
Duty to Licensees – to warn of known, but hidden 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.

7. Case Analysis Landowner’s Liability
Wiener v. Southcoast Childcare Centers, Inc., 32 Ca.4th 1138, 88 P.3d 517, 12 Cal. Rptr.3d 615, Supreme Court of California, 2004
Facts
Issue
Decision
Reasoning
Discussion

8. Breach of Duty
A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances.

9. Factual Cause & Foreseeable Harm
Factual Cause -- if the defendant’s breach ultimately led to the injury, he is liable.
Does not have to be the immediate cause of injury, but must be the first in the direct line.
Foreseeable Harm -- to be liable, this type of harm must have been foreseeable.
The defendant does not have to know exactly what would happen -- just the type of event.
Res Ipsa Loquitur -- in a few cases, the defendant must prove he was NOT negligent or the facts imply that his negligence caused the injury.

10. Example: Factual Cause & Foreseeable Harm
Mechanic fails to fix customer’s brakes, which causes...
Car accident, car hitting bicyclist
Mechanic is liable to cyclist
Factual cause and foreseeable type of injury
Car accident, car hitting bicyclist
Noise from accident startles someone who falls out a window
Mechanic is NOT liable for falling person
Factual cause, but no foreseeable type of injury
Car accident, but car
does not hit bicyclist
Bicyclist hits pothole and crashes
Mechanic is NOT liable to cyclist
No factual cause

11. Case Analysis Bystander Recovery for Emotional Distress
Ra v. Superior Court, 154 Cal. App. 4th 142, 64 Ca. Rptr.3d 539, California Court of Appeals, 2007
Facts
Issue
Decision
Reasoning
Discussion

12. Injury & Damages Injury -- plaintiff must show genuine injury
Future injury may be compensated, but must be determined at the time of trial.
Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

13. Case Analysis Injury & Damages
Reynolds v. Highland Manor, Kansas Court of Appeals, 1998
Facts
Issue
Decision
Reasoning
Discussion

14. Defenses Assumption of the Risk Contributory Negligence
A person who voluntarily engages in an activity known to be risky cannot recover if he is injured.
Contributory Negligence
In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages.
Comparative Negligence
In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff.
The plaintiff can recover from the defendant to the percentage that the defendant is negligent.

15. Negligence per se Definition Example Elements:
Violation of a standard of care set by statute.
Example
Driving while intoxicated is illegal; if a drunk driver injures a pedestrian, he has committed negligence per se.
Elements:
Statute prohibits or requires action.
Defendant’s actions violate statute.
Plaintiff’s injuries are the kind the statute was designed to protect against.
Plaintiff is within the group the statute was designed to protect.

16. Strict Liability Defective Products -- may incur strict liability.
Some activities are so dangerous that the law imposes a high burden on them. This is called strict liability.
Defective Products -- may incur strict liability.
Ultrahazardous Activities -- defendants are virtually always held liable for harm.
What is ultrahazardous? Includes using harmful chemicals, explosives and keeping wild animals.
Plaintiff does not have to prove breach of duty or foreseeable harm.
Comparative negligence does not apply -- Defendant engaging in ultrahazardous activity is wholly liable.

17. Case Analysis Strict Liability
You Be the Judge -
New Jersey Department of Environmental Protection v. Alden Leeds, Inc., Supreme Court of New Jersey, 1998
Facts
Issue
Decision?
Reasoning?
Lower court
ruling AFFIRMED

18. Negligence Did Defendant owe Plaintiff a duty? Yes
Did Defendant breach the duty?
Yes
Was the breach the actual cause of Plaintiff’s injury?
Plaintiff
recovers
Yes
Was the breach the proximate cause of Plaintiff’s injury?
Yes No No No No
Was Plaintiff also at fault?
Yes
Plaintiff does
not recover
Plaintiff
might
recover No
Is it a comparative negligence state?
Yes No

19. Quiz Matching Questions
1.  Money awarded to an injured plaintiff.
2.  Someone who has a legal right to enter upon land.
3.  A defendant’s failure to perform a legal duty.
4.  A tort caused accidentally.
5.  Legal responsibility that comes from performing ultrahazardous acts.
Breach
Strict Liability
Compensatory damages
Invitee
Negligence

20. Quiz True/False Questions
There are five elements in a negligence case, and a plaintiff wins who proves at least three of them.
Max, a 19-year-old sophomore, gets drunk at a fraternity party and then causes a serious car accident. Max can be found liable and so can the fraternity.
Some states are comparative negligence states, but the majority are contributory negligence states. T F

21. Quiz True/False Questions
A landowner might be liable if a dinner guest fell on a broken porch step, but not liable if a trespasser fell on the same place.
A defendant can be liable for negligence even if he/she never intended to cause harm.
When Ms. Palsgraf sued the railroad, the court found that the railroad should have foreseen what might go wrong. T F

22. End of Negligence and Strict Liability