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Chapter 7
Negligence &
Strict Liability
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Quote of the Day
The life of the law has not been
logic; it has been experience.
Oliver Wendell Holmes, J r.,
Supreme Court J ustice
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Negligence -
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 defendants actions.
Foreseeable harm -- it must have been foreseeable
that the action would cause this kind of harm.
Injury -- the plaintiff must have been hurt.
To win a negligence case, the plaintiff must prove
that the defendant failed in five areas:
The Unintentional
Tort
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Duty of Due Care
If a defendant could have foreseen injury to
a particular person, she has a duty to him.
Affirmative Duty to Act -- In general, the
common law does not require a bystander
to assist a person in danger.
There are special rules for liability of
landowners. (See next slide.)
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Hernandez v. Arizona
Board of Regents
Did the fraternity and the other defendants
have a duty of due care to Hernandez?
What is the logic behind the lower courts
position that a person or organization that
pours alcohol has no duty to the general
public?
Some questions to consider
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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.

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Breach of Duty
A defendant breaches his duty of due care by failing to
behave the way a reasonable person would under
similar circumstances.
Companies and Employees -- courts have found
companies liable for hiring and retaining employees
known to be violent, when those employees later
injured co-workers.
Negligence per se -- in special cases, legislatures set a
minimum standard for certain groups of people (esp.
children). When a violation of that statute hurts a
member of that group, the duty is breached.

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Factual Cause & Foreseeable Harm
Factual Cause -- if the defendants 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.
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Ex: Factual Cause & Foreseeable
Harm
Mechanic fails
to fix customers
brakes, which
causes...
Car
accident,
car hitting
bicyclist
Mechanic is
liable to
cyclist
Car
accident,
car hitting
bicyclist
Noise from
accident startles
someone who falls
out a window
Mechanic is
NOT liable
for falling
person
Factual cause
and foreseeable
type of injury
Factual cause,
but no
foreseeable type
of injury
Car accident,
car
does not hit
bicyclist
Bicyclist hits
pothole and
crashes
Mechanic is
NOT liable
to cyclist
No factual
cause
Mechanic fails
to fix customers
brakes, which
causes...
Mechanic fails
to fix customers
brakes, which
causes...
DO NOT CLICK! Let slide build on its own.
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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.
A bystander, unharmed physically, may recover for
emotional distress if...
She was near the scene of the injury,
Seeing the injury caused immediate shock, and
She is a close relative of the (physical) victim
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Negligence
Contributory Negligence
In a few states, if the plaintiff is AT ALL
negligent, he cannot recover damages from
the defendant.
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.
In some cases, a plaintiff found to be more
than 50% negligent cannot recover at all.
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Assumption of the Risk
A person who voluntarily enters a situation
that has an obvious danger cannot complain
if she is injured.
This rule applies to a situation where the danger
is well-known and the participant chooses to be
present.
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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.
Some activities are so dangerous that the law imposes a
high burden on them. This is called strict liability.
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A Negligence Suit Waiting to Happen
This week see if you can spot some careless
maintenance, unsafe condition, or other
unreasonable behavior that invites a problem.
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McDonalds Hot-Coffee
What were the facts?
Was McDonalds negligent in your opinion?
How hot is just too hot?
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Cost of the Tort System
The cost of the American tort system is
estimated to cost $260 billion a year.
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When someones person or property is
hurt, how far should society extend
liability? The law has struggled for
centuries to find compensation for the
injured without making every citizen the
insurer of all others.
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THE END