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									 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
  brakes, which                                      liable to        foreseeable
                            car hitting
     causes...                                         cyclist        type of injury

          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
          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.
◙   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
   • This rule applies to a situation
     where the danger is well-known
     and the participant chooses to be
                 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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