Negligence and Strict Liability
I. Negligence
A. Elements
1. Duty
2. Breach
3. Actual cause
4. Proximate cause
5. Damages
B. Duty
1. Reasonable care: each person must act as a reasonable person of ordinary prudence would have acted under the same or similar circumstances
2. A duty is owed
a. To foreseeable plaintiffs: those who are foreseaeably at risk of harm caused by one’s activities or conduct
b. Or if a special relationship exists between the parties
i. Professionals (lawyers, doctors, etc.) must exercise the knowledge, skill and care ordinarily possessed and employed by members of the profession
ii. Property owners owe special duties to those who enter their property
a) Invitees (business visitors or public invitees)
1) Owner must exercise reasonable care for the safety of invitees
2) Must take appropriate steps to protect the invitee against dangerous on-premises conditions that he knows about or reasonably should discover, and that the invitee is unlikely to discover
b) Licensees (those entering the property for their own purpose but with consent): owners must warn licensees of dangerous conditions they are unlikely to discover
c) Trespassers
1) Traditionally courts only charged owners with a duty to not willfully and wantonly inure trespassers whose presence is known
2) Courts now often require a higher level of care for trespassers who regularly enter the land and children known to be likely to trespass
C. Breach: negligent conduct
1. Failure to act with reasonable care (as a hypothetical person with ordinary prudence and sensibilities would have)
2. Courts consider various factors such as
a. Reasonable forseeability of harm
b. Seriousness or magnitude of harm
c. Personal characteristics of the Defendant
i. Children are generally required to act like a reasonable person of similar age, intelligence and experience would
ii. A physically disabled person must act as would a reasonable person with the same disability
3. Negligence per se
a. A violation of laws that determine how a reasonable person should act
b. Plaintiffs must show
i. They were within the class of persons intended to be protected by the statute or other law; and
ii. They suffered harm of a sort that the statute or other law was intended to protect against
D. Actual Cause
1. But for test: But for the Defendant’s actions, the Plaintiff would not have been injured
2. Substantial factor: when the conduct of two or more Defendants combines to cause the injury, the courts look to whether the conduct of each was a substantial factor in causing the injury
E. Proximate Cause
1. Definition
a. The harm suffered by the Plaintiff was a foreseeable result of the Defendant’s actions
b. I.e., Defendants are only liable for the natural and probable consequences of their actions
2. Later Acts, Forces, or Events
a. If foreseeable, will not relieve the Defendant of liability
b. If unforeseeable, or an intervening cause, the Defendant is not liable
F. Damages: harm to the plaintiff
1. Personal injury (physical or bodily injury)
2. Property damage
3. Economic loss
G. Res Ipsa Loquitur
1. “The thing speaks for itself”
2. If a Plaintiff has no way of knowing what caused the injury, a presumption of breach and causation arises if
a. The Defendant has exclusive control of the instrumentality of harm;
b. The harm that occurred would not ordinarily occur in the absence of negligence; and
c. The Plaintiff was not responsible for his own injury
H. Defenses
1. Contributory Negligence
a. The Plaintiff failed to exercise reasonable care for his or her own safety
b. Complete defense
2. Comparative Negligence
a. Courts look at the relative negligence of the Plaintiff and Defendant and award damages in proportion to the degree of fault of each
b. Plaintiff’s recovery = Defendant’s percentage share of the negligence causing the injury X Plaintiff’s proven damages
i. In states using a pure system, the Plaintiff will always recover
ii. In states using a mixed system, the Plaintiff will only recover if the Defendant’s share of the negligence is greater than or equal to 50%
3. Assumption of Risk: voluntary consent to a known danger
a. Implied: inferred from the facts
b. Express: entering into a contract purporting to relieve the Defendant of a duty
II. Strict Liability
A. Defined as liability regardless of fault
B. Applies to
1. Abnormally dangerous activities (i.e., blasting, crop dusting, and stunt flying)
a. Contributory negligence is not generally a defense
b. Assumption of risk has been a defense
2. Manufacture or sale of defective and unreasonably dangerous products