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 -- it must have been foreseeable that the action would cause this kind of harm. • Injury -- the plaintiff must have been hurt. Duty of Due Care ◙ If a defendant could have foreseen injury to a particular person, 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 “dram shop laws,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm. ◙ 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.) 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. 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. 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. DO NOT CLICK! Let slide “build” on its own. Ex: Factual Cause & Foreseeable Harm Mechanic fails Car Factual to fix customer’s Mechanic is cause and accident, brakes, which liable to foreseeable car hitting causes... cyclist type of injury bicyclist Factual Car Noise from Mechanic is cause, but accident, accident startles NOT liable no car hitting someone who falls for falling foreseeable bicyclist out a window person type of injury Car accident, No Bicyclist hits Mechanic is car factual pothole and NOT liable does not hit cause crashes to cyclist bicyclist Injury & Damages ◙ Injury -- plaintiff must show genuine injury • Future injury may be compensated, but must be determined at the time of trial. ◙ 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 ◙ Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive. 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. 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. 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.
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