Session 7

Tort of Negligence: 
 Actions depart from reasonable amount of care and pose threat.  
 Duty of Care:  
o We are free to act/not act in any way we want to. But the law expects us to
be reasonable when actions are related to others. (Not intentionally).  
o Claim not based on intention but on the fact that tortfeasor's action
departed from Duty of Care.  
 Plaintiff must prove 4 elements:  
1. Duty:  
 Defendant owed a duty of care to plaintiff.  
2. Breach: 
 Breach of that duty of care.  
3. Causation: 
 Breach caused Injury 
4. Damages: 
 Legally recognizable injury.  
 Carelessness hurt someone, amounts to breaching the duty of care.  
 e.g. McDonalds case:  
o Woman 80 y/o. The coffee is very hot (higher than other coffee outlets).
Lady spills coffee on herself. 3rd degree burns. Can she sue McDonalds?
Yes.  
o Sued McD for negligence:  
 McDonalds owed a Duty of Care to provide coffee in a safe
manner.  
 Duty breached:  
 Provided at higher temp than standard.  
 (1. Duty of Care. 2. Duty of Care was breached (act in an
irresponsible manner).  
 Reasonable Person Standard:  
o Society's conception of how an ordinarily prudent reasonable person
would act.  
 Breach of Duty:  
o Look at how a rational, prudent, honest, reasonable person would act and
compare the action with the case at hand.  
 Causation:  
o Did the breach cause any harm/injury?  
 Damages:  
o Did the plaintiff go through a reasonable harm?  
 Negligence:  
o Can be careless or planned.  
o Plaintiffs are bringing claims so they are compensated for the harms and
ask for punitive damages as well.  
o e.g. McDonalds case also had punitive damages.  
 Duties of Care:  
o Can arrive in different circumstances.  
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o Always expected to act in a reasonable prudent manner and not create

unnecessary risks for people and others.  
o Courts are determining the relationship between activities.  
o Act unusual in terms of reasonable person actions.  
o Situations: 
 Duty of Land Owners:  
 Parties coming onto the land.  
 Duty to Warn.  
 Duty towards trespassers.  
 Duty to warn people of any dangerous
animal/harm.  
 When leased:  
 They can't make misrepresentations even
in the case of them being negligent.  
 Negligent disregard of the truth.  
 Duty to Business Invitees:  
 Make premises safe.  
 Warn of any foreseeable harm. 
 Slip and Fall Cases (Famous):  
 e.g. Walmart, wet floor. No warning,
You fall and you break a leg.   
 Duty to Warn.  
 Sue Walmart or Employee? 
 Walmart because of money. 
 Plaintiffs always look for defendants
with more money. 
 Duty to Warn:  
 Not obliged for obvious risks.  
 e.g. Bus coming going to hit someone.  
 No legal duty to rescue the person.  
 No legal duty to rescue to someone. Might be
driven to act ethically.  
 If voluntarily undertake the effort to
rescue/warn, then the rescue itself can't be
negligent.  
 
o Professional Duties of Care:  
 They owe a professional duty of care to those services are
provided to.  
 Expected to provide services in a manner consistent with their
skillset and requirements.  
 Judged against the professional standard of care. (not the
ordinary standard). 
 Malpractice: Negligence Law Suits.  
 Causation:  
o Action has to cause the harm.  
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2. Causation in fact/"but for" causation:  

 But for the act of the defendant the harm shouldn't have
happened.  
 Injury/harm caused by the person's act.  
3. Proximate Causation:  
 Connection between an act and the injury is strong  
 Connection between an act an injury is strong enough to
impose liability.  
 Only interested in foreseeable harm.  
 e.g. somebody fails to put out camp fire. Chem
factory also catches fire. Chemicals spilled into
river and all marine life is dead.  
 What acts were foreseeable, not too remote.  
 Palsgraf v New York Railroad Company: 
 Man trying to get on to moving train,
holding ordinary looking bag.
Employees looking and decide to help
by pushing. Bag falls, and there is an
explosion. Roof of the platform catches
fire.  
 Higher court ruled that it wasn't
foreseeable. Ordinary looking bag.  
 Injury Requirements and Damages: 
o Harm/loss happened. (Legally recognizable injury) 
o Seek compensation of the harm done.  
 D B C D. 
 Defenses to Negligence:  
o Duty of Care Defense.  
o Fail to prove the required elements for negligence.  
o No proximate causation.  
o 3 Affirmative Defenses: 
 Assumption of Risk:  
 Assuming risk by voluntarily carrying out an
activity knowing of the risk.  
 Employers can't use assumption of risk because
there are other legal statutes that are involved.  
3. Knowledge of Risk 
4. Voluntary assumption of the risk.  
 Not applied in emergency situations.  
 Superseding Cause/Unforeseeable Intervening Event: 
 If the chain of causation is broken between the act
and the injury.  
 e.g. Driving negligently. Hit someone. Airplane
crash has debris. Debris hits the biker who was hit
by me. Now debris makes him a lot more injured.
Go to court. Can defend by saying superseding
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cause, thus not all damages (not responsible). That

is because it had an unforeseeable Intervening
Event (Airplane Crash).  
 However, when airplane crashed there was some
over speeding car that hit the already injured
person. That is foreseeable. Thus liable.  
 Contributory/Comparative Negligence:  
 e.g. Driving in different directions.  
 (Contributory) Even if there is 1% negligence in the
part of plaintiff, the plaintiff can't recover
anything.  
 Assign percentages of negligence to the parties
which might decrease the damages the defendants
have to pay (Comparative Negligence).  
 Special Negligence Doctrine:  
1. Res Ipsa Loquitur/ Facts Speak for themselves:  
 e.g. Doctor left something inside body.  
 Usually plaintiff has to prove but if the
court has already established that
negligence has occurred then the
defendant has to prove how he/she was
not negligent.  
 Event must have been in defendant's
control.  
2. Negligence per se:  
 Negligence act is covered by any other
statute.  
 Violation of a statute (criminal penalty)
but also causes harm/injury.  
 Danger Invites Rescue Doctrine:  
o Rescuer not held liable for damages because danger wasn't caused by the
rescuer.  
o e.g. driving on road in coming car. Drunk driver so I avoid the incoming
car and hit pedestrian. Who is liable for the harm?  
o Negligent drunk driver responsible for harm.  
o Another aspect: e.g. Standing on road and see another person on road and
there is an incoming drunk driver swerving. Drunk driver creates danger. I
try to rescue that person (voluntarily). I get hit by the car. Can't be
defended since your negligence created danger and invited my rescue.  
 Special Acts that Deal with Negligence:  
 Good Samaritan Laws:  
 Rescuer liable for negligence during rescue attempt?  
 Rescuer can not be sued for negligence  
 This is only for medical professionals (as in California).
This encourages medical professionals to take a rescue
job.  
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 Dram Shop Acts:  

 Owner of a bar/intoxicant distributer can be held liable for
the negligence based torts for those who it is sold to.  
 e.g. goes to bar gets drunk. Hits pedestrian. Can hold bar
owner responsible.  
 Why bar owner? More money, more compensation.  
 Party hosts also held responsible for negligence based torts
(e.g. Minor drinking at a party hosted by Hamza. Hamza is
liable.)  
 (Negligence based torts ended).