Ch 7 - Negligence And Strict Liabilty

Front 1

To win a negligence case, plaintiff must prove five elements:

Back 1

1. Duty of Due Care. The defendant had a duty of due care to this plaintiff.
2. Breach. The defendant breached her duty.
3. Factual Cause. The defendant's conduct actually caused the injury.
4. Foreseeable Harm. It was foreseeable that conduct like the defendant's might cause this type of harm.
5. Injury. The plaintiff has actually been hurt.

Front 2

Landowner's Duty:
Lowest Liability

Back 2

Trespasser. A trespasser is anyone on the property without consent. A landowner is only liable to a trespasser for intentionally injuring him or for sone other gross misconduct. The landowner has no liability to a trespasser for mere negligence.

Front 3

Landowner's Duty:
Occasional Liability

Back 3

Children. The law makes exceptions when the trespassers are children. If there is some man-made thing on the land that may attract children, the landowner is probably liable for any harm.

Front 4

Landowner's Duty:
Higher Liability

Back 4

Licensee. A licensee is anyone on the land for her own purposes but with the owner's permission.

Front 5

Landowner's Duty:
Highest Liability

Back 5

Invitee. An invitee is someone on the property as of right because it is a public place or a business open to the public. the owner has a duty of reasonable care to an invitee.

Front 6

Reasonable Person Standard:

Back 6

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

Front 7

Reasonable Person:

Back 7

Someone of the defendant's occupation.

Front 8

Negligence Per Se:

Back 8

When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statute injures a member of that group. A plaintiff who can show negligence per se need not prove breach of duty.

Front 9

Factual Cause:

Back 9

The defendant's breach physically led to the ultimate harm.

Front 10

Foreseeable Type of Harm:

Back 10

For the defendant to be liable, the type of harm must have been reasonably foreseeable.

Front 11

Injury:

Back 11

The plaintiff must persuade the court that he has suffered a harm that is genuine, not speculative.

Front 12

Compensatory Damages:

Back 12

The amount of money that the court believes will restore him to the position he was in before the defendant's conduct caused by the injury.

Front 13

Punitive Damages:

Back 13

Money intended not to compensate the plaintiff but to punish the defendant.

Front 14

Contributory Negligence:

Back 14

If the plaintiff even slightly negligent she recovers nothing.

Front 15

Comparative Negligence:

Back 15

A plaintiff may generally recover even if she is partially responsible.

Front 16

Assumption of the Risk:

Back 16

A person who voluntarily enters a situation that has an obvious danger cannot complain of she is injured.

Front 17

Ultra-hazardous Activity:

Back 17

A defendant engaging in an ultra-hazardous activity is virtually always liable for any harm that results.

Front 18

Chapter Conclusion:

Back 18

Tort issues necessarily remain in flux, based on changing social values and concerns. There is no final word on what is an ultra-hazardous activity, or how much security a day care center must provide, or whether a social host can be liable for the destruction caused by a guest. What is clear is that a working knowledge of these issues and pitfalls can help everyone- business executive and ordinary citizen alike.

Front 19

Chapter Review #1

Back 19

The five elements of negligence are duty of due care, breach, factual causation, foreseeable type of harm, and injury.

Front 20

Chapter Review #2

Back 20

If the defendant could foresee that misconduct would injure a particular person, he probably has a duty to her.

Front 21

Chapter Review #3

Back 21

In most states, a landowner's duty of due care is lowest to trespassers; often higher to children; higher still to a licensee (anyone on the land for her own purposes but with the owner's permission); and highest of all to an invitee (someone on the property as of right).

Front 22

Chapter Review #4

Back 22

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

Front 23

Chapter Review #5

Back 23

Employers may be liable for negligent hiring or negligent retention of employees.

Front 24

Chapter Review #6

Back 24

If a legislature sets a minimum standard of care for a particular activity in order to protect a certain group of people, and a violation of the statute injures a member of that group, the defendant has committed negligence per se.

Front 25

Chapter Review #7

Back 25

If one event physically led to the ultimate harm, it is the factual cause.

Front 26

Chapter Review #8

Back 26

For the defendant to be liable, the type of harm must have been reasonably foreseeable.

Front 27

Chapter Review #9

Back 27

The plaintiff must persuade the court that he has suffered a harm that is genuine, not speculative.

Front 28

Chapter Review #10

Back 28

In a contributory negligence state, a plaintiff who is even slightly responsible for his own injury recovers nothing; in a comparative negligence state, the jury may apportion liability between plaintiff and defendant.

Front 29

Chapter Review #11

Back 29

A defendant is strictly liable for harm caused by an ultrahazardous activity or a defective product. Ultrahazardous activities include using harmful chemicals, blasting, and keeping wild animals. Strict liability means that if the defendant's conduct led to the harm, the defendant is liable, even if she exercises extraordinary care.

Front 30

Practice Test #1

Back 30

Irving was a notary public who prepared income tax returns for Maroevich. Irving agreed to draft a will for Maroevich, leaving all of the property to Maroevich's sister, Biakanja. When Maroevich died, the probate court refused to accept the will because Irving had failed to have the signatures properly witnessed. As a result, Biakanja inherited only one-eighth of the estate. She sued Irving. Irving defended by saying that he had no duty of due care to Biakanja because all of his dealings were with Maroevich and none were with her. Discuss.

Front 31

Practice Test #2

Back 31

Jason Jacque was riding as a passenger in a car driven by his sister, who was drunk and driving 19 mph over the speed limit. She failed to negotiate a curve, skidded off the road, and collided with a wooden utility pole erected by the Public Service Company of Colorado (PSC). Jacque suffered severe brain injury. He sued PSC for negligently installing the pole too close to the highway at a dangerous curve where an accident was likely to happen. The trial court gave summary judgment for PSC, ruling that PSC owed no duty to Jacque. He appealed. Please rule.

Front 32

Practice Test #3

Back 32

At approximately 7:50 PM bells at the train station rang and red lights flashed, signaling an express train's approach. David Harris walked onto the tracks, ignoring a yellow line painted on the platform instructing people to stand back. Two men shouted to Harris, warning him to get off the tracks. The train's engineer saw him too late to stop the train, which was traveling at approximately 99 mph. The train struck and killed Harris as it passed through the station. Harris's widow sued the railroad, arguing that the railroad's negligence caused her husband's death. Evaluate her argument.

Front 33

Practice Test #4

Back 33

A supervisor reprimanded an employee for eating in a restaurant when he should have been at work. Later, the employee showed up at the supervisor's office and shot him. Although the employee previously had been violent, management withheld this information from supervisory personnel. Discuss.

Front 34

Practice Test #5

Back 34

Ryder leased a truck to Florida Food Service; Powers, an employee, drove it to make deliveries. He noticed that the door strap used to close the rear door was frayed, and he asked Ryder to fix it. Ryder failed to do so in spite of numerous requests. The strap broke, and Powers replaced it with a nylon rope. Later, when Powers was attempting to close the rear door, the nylon rope broke and he fell, sustaining severe injuries to his neck and back. He sued Ryder. The trial court found that Powers's attachment of the replacement rope was a superseding cause, relieving Ryder of any liability, and granted summary judgment for Ryder. Powers appealed. How should the appellate court rule?

Front 35

Practice Test #6

Back 35

A new truck, manufactured by General Motors Corp., stalled in rush hour traffic on a busy interstate highway because of a defective alternator, which caused a complete failure of the truck's electrical system. The driver stood nearby and waved traffic around his stalled truck. A panel truck approached the GMC truck, and immediately behind the panel truck, Davis was driving a Volkswagen fastback. Because of the panel truck, Davis was unable to see the stalled GMC truck. The panel truck swerved out of the way of the GMC truck, and Davis drove straight into it. The accident killed him. Davis's widow sued GMC. GMC moved for summary judgment, alleging (1) no duty to Davis, (2) no factual causation, and (3) no foreseeable harm. Comment.

Front 36

Practice Test #7

Back 36

7. A prison inmate bit a hospital employee. The employee sued the state for negligence and lack of supervision, claiming a fear of AIDS. The plaintiff had tested negative for the AIDS virus three times, and there was no proof that the inmate had the virus. Comment on the probable outcome.

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Practice Test #8

Back 37

8. ETHICS Swimming pools in private homes often have diving boards, but those in public parks, hotels, and clubs rarely do. Why is that? Is it good or bad?

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Practice Test #9

Back 38

There is a collision between cars driven by Candy and Zeke, and both drivers are partly at fault. The evidence is that Candy is about 25 percent responsible, for failing to stop quickly enough, and Zeke about 75 percent responsible, for making a dangerous turn. Candy is most likely to win:
a. A lawsuit for battery
b. A lawsuit for negligence, in a comparative negligence state
c. A lawsuit for negligence, in a contributory negligence state
d. A lawsuit for strict liability; or
e. A lawsuit for assault.

Front 39

Practice Test #10

Back 39

YOU BE THE JUDGE WRITING PROBLEM When Thomas and Susan Tamplin were shopping at Star Lumber with their six-year-old daughter Ann Marie, a 150-pound roll of vinyl flooring fell on the girl, seriously injuring her head and pituitary gland. Ann was clearly entitled to recover for the physical harm, such as her fractured skull. The plaintiffs also sought recovery for potential future harm. Their medical expert was prepared to testify that, although Ann would probably develop normally, he could not rule out the slight possibility that her pituitary injury might prevent her from sexually maturing. Is Ann entitled to damages for future harm? Argument for Ann: This was a major trauma, and it is impossible to know the full extent of the future harm. Sexual maturation is a fundamental part of life; if there is a possibility that Ann will not develop normally, she is entitled to present her case to a jury and receive damages. Continued on next card..

Front 40

Practice Test #10 continued

Back 40

Argument for Star Lumber: A plaintiff may not recover for speculative harm. The “slight possibility” that Ann could fail to develop is not enough for her to take her case to the jury.

Front 41

Practice Test #11

Back 41

Van Houten owned a cat and allowed it to roam freely outside. In the three years he had owned it, it had never bitten anyone. The cat entered Pritchard's garage. Pritchard attempted to move it outside his garage, and the cat bit him. As a direct result of the bite, Pritchard underwent four surgeries, was fitted with a plastic finger joint, and spent more than $39,000 in medical bills. He sued Van Houten, claiming both strict liability and ordinary negligence. Please evaluate his claims.

Front 42

Practice Test #12

Back 42

ROLE REVERSAL Create a question that distinguishes between ordinary negligence and strict liability.