Chapter 7 - Negligence and Strict Liability


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  • Carolyn A. Raleigh, her son, Kevin C. Raleigh (plaintiffs), and Carolyn's husband, Kevin P. Raleigh sued Performance Plumbing and Heating, Inc. (defendants) for damages they suffered in an automobile accident caused by Cory Weese.   Weese, a Performance Plumbing employee, was driving his own truck on the way home from work when he caused the accident. A jury found that Weese was not acting within the scope of his employment for Performance Plumbing when he caused injury to the Raleighs.   Nevertheless, the jury awarded damages against Performance Plumbing for negligently hiring Weese.   In rejecting both the Raleighs' respondeat superior and negligent hiring causes of action against Performance Plumbing, the court of appeals relied on the jury's special finding that Weese was not acting within the scope of his employment when he caused the injuries: Having specifically found that employee was not acting within the scope of his employment at the time of the accident, the jury had no logical basis to find that defendant's breach of its duty to use reasonable care in hiring employee was the cause of plaintiffs' injuries.
  • “ We hold that the tort of negligent hiring, when applicable under the circumstances of a particular case, can operate to hold an employer liable for intentional or negligent acts of an employee that are within or outside of the scope of employment.   Under the facts of this case, however, the trial court should not have submitted the negligent hiring claim to the jury;  having done so, it should have granted judgment in favor of Performance Plumbing notwithstanding the verdict.   The accident occurred after Weese had finished his work day.   The scope of Performance Plumbing's duty to the Raleighs under the tort of negligent hiring did not extend to the Raleighs because the job for which it hired Weese did not include driving to and from work.”
  • An example of reckless behavior that may harm another is an intoxicated driver in a vehicle who injures another person. The driver intentionally drove in an intoxicated condition, but intended no harm to result. However, the driver’s intent is irrelevant – only the behavior of driving drunk and the end result is relevant to the determination of negligence.
  • Specifically, Plaintiff’s daughter and the third party male were arguing and the man used the pump to pour gasoline on and set fire to plaintiff’s daughter. The jury returned a $3.5 million verdict in favor of plaintiff and the court reduced the award because of the jury’s finding that the negligence of plaintiff’s daughter contributed to her own injury. Chevron appealed to the U.S. Court of Appeals for the Eleventh Circuit.
  • The hyperlink is to the Indiana Supreme Court opinion. A business invitee of a grocery store was assaulted in the store’s parking lot. The store contends in part that because the assault was not reasonably foreseeable it owes no duty to the invitee. Kroger filed a motion for summary judgment arguing (i) it owed no duty to Plonski, (ii) if it owed a duty the duty was not breached, and (iii) in any event Plonski’s injuries were not proximately caused by Kroger’s conduct. The trial court denied the summary judgment and Kroger appealed.
  • Court: “The problem in this case however is that the factual dispute concerning the level of criminal activity on the Kroger premises as evidenced by the police reports [Plonski introduced] was not admissible….[and] the trial court erred in granting Plonski’s motion to strike, and compounded the error by allowing Plonski to introduce the police reports for the ostensible purpose of supporting her motion.
  • Atlantic Coast Airlines v. Cook: A passenger disrupted a commuter flight from Indianapolis to New York by smoking, shouting, sitting in different empty seats and walking toward the cockpit. Other passengers blocked the aisle to keep the unruly passenger away from the cockpit. There was no physical contact between the parties. Two of the passengers filed suit, alleging negligent infliction of emotional distress against the airline. This court held that the passengers' cause of action failed because they had not sustained a "direct physical impact" as a result of the airline's alleged negligence. Even if the passengers had sustained a physical impact of some kind, their emotional distress claim was inadequate because their distress was temporary and speculative.
  • Stahlecker v. Ford Motor Co. is the case in which Firestone tires failed on a Ford Explorer and rendered the vehicle inoperable. A criminal abducted, raped, and murdered the female driver of the vehicle. Her parents filed suit against the criminal, Ford, and Firestone. The district court dismissed Ford and Firestone because the criminal acts constituted an intervening cause that would relieve Ford and Firestone of any liability they might otherwise have had. The parent plaintiffs appealed and the state supreme court affirmed the district court’s dismissal of the corporate defendants, stating: “We have found no authority recognizing a duty on the part of the manufacturer of a product to protect a consumer from criminal activity at the scene of a product failure where no physical harm is caused by the product itself.”
  • The hyperlink is to the opinion on the website. The key is that the person causing the accident because he fell asleep at the wheel had chosen to take a second job, increasing the risk fatigue.
  • Res ipsa loquitur is not only a wonderful phrase for cocktail conversations, but common doctrine used in malpractice cases since the defendants typically have an advantage with regard to evidence
  • The hyperlink is to the opinion on the website. The formula for comparative negligence is: Plaintiff ’s recovery = defendant’s percentage share of the negligence causing the injury X plaintiff’s proven damages. In the Berberich v. Jack case, Neal Berberich brought a negligence action against Naomi M. Jack after he slipped and fell from a wet ladder while working at her home. Berberich alleged Jack engaged in reckless, willful, and wanton conduct that proximately caused his injuries because she refused to turn off a lawn sprinkler system while he was working. The comparative negligence of the plaintiff and defendant was allowed at trial and on appeal, the South Carolina Supreme Court declared that a jury may compare all forms of negligence as part of its assessment of fault. The case was remanded for a new trial. In the famed McDonald’s coffee case, the jury determined that Stella Liebeck was 20% at fault for her injury caused by a spill of unreasonably hot coffee, thus reduced her damage award by 20%. The jury awarded Leibeck $200,000 in compensatory damages for her multiple surgeries and skin grafts. The amount reduced to $160,000 because jury found Liebeck 20% at fault for spill. The jury awarded punitive damages of $2.7 million (2 days of McDonald’s coffee sales), but the trial court reduced punitive award to $480,000.
  • The key to assumption of risk claims is that the plaintiff KNEW of the danger. Therefore, if a plaintiff undertakes a dangerous or risky activity, then the plaintiff is liable for foreseeable injuries. In the snowboarding case, common injuries include broken bones. However, plaintiffs have won lawsuits in which they undertook a risky activity but did not suffer foreseeable injuries. For example, a defendant ski resort may be liable if a snowboarder’s injury was caused by a fall onto an object hidden by snow, which was known to be a danger by the resort operators and which did not have a sign or protective fence to warn invitees of the hidden danger.
  • The image of the truck is a reference to Dyer v. Maine Drilling and Blasting, Inc. concerning road construction and related blasting operations that damaged a home. Opportunity to discuss with students about whether companies should be responsible to consumers for defective products and get students to relate ethical decision making to product design and manufacturing decisions
  • False. A special relationship (property owner and invitee, lawyer and client, doctor and patient, etc.) may create a duty of due care. True. True. False. Negligence per se refers to a situation in which a defendant violates a regulation and is therefore “negligent per se.” Contributory negligence occurs when a plaintiff contributes to his or her own injury.
  • False. True. True.
  • The correct answer is (e) The correct answer is (a)
  • The correct answer is (d) The correct answer is (a).
  • Class discussion Relevant facts that expose the “tort reform” myths: Tort claims account for only 5% of the 19.7 million civil claims filed in state courts ( Nat’l Center for State Courts, 1992 ) Products liability cases account for 4% of all tort cases in state courts ( Nat’l Center for State Courts, 1992 ) Business cases (financial damages) account for 47% of all punitive damage awards (Rand Institute for Civil Justice, 1996) In contrast, only 4.4% and 2% of punitive damage awards are due to product liability and medical malpractice cases respectively (Rand Institute for Civil Justice, 1996) Businesses suing each other over contracts comprised nearly half of all federal court cases filed between 1985 and 1991 (The Wall Street Journal, 12/93) Contract and property cases - most involving business - comprise more than 1/3 of all civil cases in state courts; by comparison, only 0.21% of all civil cases were product liability claims (National Center for State Courts, 1995)
  • Chapter 7 - Negligence and Strict Liability

    1. 1. C H A P T E R Negligence and 07 Strict Liability Mistakes are a fact of life. It is the response to error that counts. Nikki Giovanni 7-1
    2. 2. Learning Objectives• Identify the elements of negligence• Define the reasonable care standard and the role of foreseeability• Explain whether a defendant has breached a duty of reasonable care and applicable defenses• Understand special doctrines and injuries in the law of negligence 7-2
    3. 3. Negligence• Elements of a negligence claim are:2. Defendant owed a duty of care to plaintiff,3. Defendant committed a breach of duty,4. Breach was actual and proximate cause of the injury experienced by plaintiff 7-3
    4. 4. Duty of Due Care• In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant’s conduct – A duty may arise if a special relationship existed between the parties • Examples of a special relationship: doctor-patient, lawyer-client, accountant-client 7-4
    5. 5. Raleigh v. Performance Plumbing and• Facts & Procedural History: – Plaintiffs sued defendant for damages they suffered in an automobile accident caused by Weese, a Performance Plumbing employee – Weese was driving his own truck on way home from work when he caused the accident – Jury found that Weese was not acting within the scope of his employment for defendant company when he caused injury to plaintiffs 7-5
    6. 6. Raleigh v. Performance Plumbing and Heating, Inc.• Issue: – Did defendant owe plaintiff a duty of care? • Without a duty, there can be no breach• Law Applied to Facts: – Employee was not acting in the course and scope of employment at time of accident, so defendant had no legal duty to plaintiffs• Holding: – Judgment affirmed 7-6
    7. 7. Breach of Duty of Due Care• If a duty exists, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances – Reasonable person standard• The test focuses on defendant’s behavior, not defendant’s intent – Reckless behavior may be unreasonable 7-7
    8. 8. Currie v. Chevron U.S.A., Inc.• Facts & Issue: – Plaintiff filed wrongful death suit against defendant company on theory that Chevron’s employee negligently authorized the gas pump used by a third party and plaintiff’s daughter died as a result – Issue: Did district court err in denying Chevron’s motion for judgment as matter of law?• Holding: – Jury question existed whether event was reasonably foreseeable, thus duty of care arose – District court did not err; judgment affirmed 7-8
    9. 9. Special Doctrines• Premises liability• Negligence Per Se 7-9
    10. 10. Premises Liability Cases• Based on the duty a property owner or tenant has to those on the property• Duty varies with type of person on property• Invitee (business visitor or member of the public) – Owner or tenant must exercise reasonable care for safety of his/her invitees 7-10
    11. 11. Premises Liability Cases• Licensee (those on property for his/her own purpose) – Owner or tenant obligated only to warn licensee of hidden, dangerous conditions• Trespasser (those on property illegally) – Owner or tenant owes no duty, but may not willfully injure trespassers 7-11
    12. 12. Kroger Co. v. Plonski• Facts & Trial Court Ruling: – Plonski, a business invitee, sued Kroger for negligence after she was assaulted in stores parking lot by an unknown assailant – Kroger moved for summary judgment arguing that the assault was not by a patron and was not foreseeable, thus a duty to protect the invitee did not arise – Trial court denied summary judgment motion and Kroger appealed 7-12
    13. 13. Kroger Co. v. Plonski• Indiana Supreme Court Holding: – Fact finder (jury) must determine whether Kroger should have done more to protect its business invitees from foreseeable criminal activity, such as providing adequate security – Trial court properly denied Kroger’s motion for summary judgment 7-13
    14. 14. Negligence Per Se• The defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff – (1) was within the class of persons intended to be protected by the statute or other law, and – (2) suffered harm of a sort that the statute or other law was intended to protect against 7-14
    15. 15. Kaltman v. All American Pest Control, Inc.• Facts & Procedural History: – Plaintiffs retained defendant to treat and prevent pest infestation in their residence, but employee used pesticide not approved for residential use, resulting in damages – Defendants argued that any duties were contract-based, not based in negligence – Trial court agreed and plaintiffs appealed 7-15
    16. 16. Kaltman v. All American Pest Control, Inc.• Supreme Court of Virginia Ruling: – Primary consideration of tort law is protection of persons and property from injury; plaintiffs seek this protection – Just because application of pesticide is included in defendant’s contract does not mean plaintiffs contracted away common law or statutory rights – Defendants violated state law and plaintiffs are members of the class of persons for whose benefit the statute was enacted – Reversed and remanded 7-16
    17. 17. Causation and Injury• Injuries may include bodily or emotional injury, and property or economic damage• Causal link between the alleged misconduct and the injury requires: – Actual cause: plaintiff would not have been hurt “but for” defendant’s breach of duty (act or omission) – Proximate cause: plaintiff’s injury was foreseeable consequence of defendant’s act or omission 7-17
    18. 18. Causation and Injury• An event that occurs after initial breach of duty may worsen a plaintiff’s injury – Example: plaintiff injured in accident and while unconscious, a thief steals the plaintiff’s wallet• If latter event is foreseeable, defendant will be deemed liable• If latter event not foreseeable, defendant will be absolved from liability – Example: Stahlecker v. Ford Motor Co. 7-18
    19. 19. Black v. William Insulation Co.• Issue: – Did trial court err in failing to recognize a duty of care from an employer to innocent third parties who are injured its employees who are exhausted due to working conditions imposed by employer• Facts: – Injuries were not “natural and probable” result of any negligent acts by defendant, but by decisions and conduct of the employee – No foreseeability, thus no duty 7-19
    20. 20. Causation and Injury• An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself)• Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) harm would not occur in absence of negligence, and (3) plaintiff not responsible for his own injury – Example: after abdominal surgery, patient complains of pain in abdomen and X-ray shows surgical clamp left in abdomen 7-20
    21. 21. Defenses: Contributory Negligence• Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety – Example: auto accident in which defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully 7-21
    22. 22. Comparative Negligence• Contributory negligence used to be a complete defense, but most states enacted comparative negligence systems in which a court or jury determines relative negligence of parties and awards damages in proportion to each party’s degree of negligence• See Berberich v. Jack 7-22
    23. 23. Defenses: Assumption of Risk• Assumption of risk is plaintiff’s voluntary consent to known danger – Example: plaintiff snowboards and breaks leg during a fall• Exculpatory clause: plaintiff expressly assumes risk of injury by a contract term that attempts to relieve defendant of a duty of care otherwise owed to plaintiff 7-23
    24. 24. Special Doctrines• Strict Liability 7-24
    25. 25. Strict Liability• Liability without – or irrespective – of fault• Thus, a defendant is liable even though s/he did not intend to cause harm and did not act recklessly or negligently• Basic for product liability cases 7-25
    26. 26. Strict Liability• Imposing strict liability is a social policy decision that risk associated with an activity, especially abnormally dangerous activities, should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk 7-26
    27. 27. Test Your Knowledge• True=A, False = B – A duty of due care may arise only if a contract or statute creates such a duty – Without a duty, there can be no breach – Res ipsa loquitur means the thing speaks for itself and is related to causation – Negligence per se occurs when a plaintiff contributed to his or her own injury 7-27
    28. 28. Test Your Knowledge• True=A, False = B – Contributory negligence and comparative negligence mean the same thing – Assumption of risk is the plaintiff’s voluntary consent to a known danger – Imposing strict liability is a social policy decision 7-28
    29. 29. Test Your Knowledge• Multiple Choice – The elements of a negligence claim include: a) duty of due care b) breach of the duty of due care c) causation (actual and proximate) d) injury to plaintiff e) all of the above – The reasonable person test focuses on: a) Defendant’s behavior b) Defendant’s intent 7-29
    30. 30. Test Your Knowledge• Multiple Choice – The causation element requires proof of: a) actual cause (the “but for” test) b) proximate cause c) sufficient cause d) both (a) and (b), but not (c) – A property owner or tenant must exercise reasonable care for the safety of his/her: a) Invitees b) Licensees c) Trespassers 7-30
    31. 31. Thought Question• Does tort law have a useful purpose in society? Do the remedies make sense? 7-31