LAW 3800 - Summary of Chapter 7 PDF

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Download LAW 3800 - Summary of Chapter 7 PDF

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Chapter 7 ➢ Negligence ○ Duty of Due Care ■ Special rules for landowners, professionals (malpractice) and hiring/retention ○ Breach ■ Including negligence per se ○ Causation ■ Including factual cause and proximate cause ■ Doctrine of res ipsa loquitur ● The thing speaks for itself - the facts imply that the defendant's negligence caused the accident ○ Damages ■ Non-speculative ➢ Defenses to negligence ○ Contributory negligence states ■ Plaintiff who was also negligent cannot recover ○ Comparative negligence states ■ Plaintiff who was partially negligent can recover proportionally, but many bar recovery totally if plaintiff was more than 50% responsible ○ Assumption of Risk ■ Person who voluntarily enters situation that has an obvious danger cannot recover for resulting injury ➢ Strict Liability

➢ Negligence ○ Duty of due care, ■ Each person has a duty to act as a reasonable person would under the circumstances ● Example: Hernandez v Arizona Board of Regents ○ One who furnishes alcohol to those under the legal drinking age breaches a common-law duty to innocent third duties who may be injured ● Most states say that a social host which over serves alcohol to an adult is not responsible for resulting harm caused by the adult drinker, but depends on the circumstances ○ The foreseeability they would drive drunk ● The liability of bars, taverns, restaurants, etc. is addressed in “dram shop” acts which impose liability resulting harm if the establishment serves alcohol to intoxicated person ■ Some special circumstances in which special duties are imposed ● Trespassing adult (on property w/o the owner’s consent) ○ No liability for mere negligence ○ Only liable for intentional injury or some other gross misconduct ● Trespassing children ○ No duty for mere negligence, However, duty of care if some manmade thing on the land may be reasonably expected to attract children ● Licensee (on land for licensee’s own purposes, but with owner’s permission; Ex = a social guest) ○ Owner has duty to warn licensee of hidden dangers of which the owner is award ○ No duty to warn of obvious dangers ● Invitee (on land b/c it is a public place or a business open to public ○ Owner owes a duty of reasonable care to invitee ○ Even if owner unaware of hidden danger, can be liable ○ Owner of business needs to inspect own property ● Professionals ○ A person must act as a reasonable person in her profession would act ● Employers ○ Can be held liable for workplace violence (and sometimes even offpremises violence) if employer did not act as a reasonable employer would act ■ May involve pre-employment investigation and screening; not retaining employees who exhibit violence, security guards, lightning in parking lots, etc.

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Breach, ■ Failure to meet the duty of care ■ Usually established by convincing the jury that the defendant did not act as a reasonable person in the circumstances would act ■ In some cases, the legislature has established that a minimum standard of care is necessary to protect a certain group of persons. If that statute is violated and a member of the protected group is injured by the violation, the defendant has committed, negligence per se ● Example: Louis D Zerby v CHester L Warren ○ Only difference btwn a statutorily imposed duty of care and a duty of care under common law is that the duty imposed by statute is fixed, so its breach ordinarily constitutes conclusive evidence of negligence, or negligence per se, while the measure of legal duty in the absence of statute is determined under common-law principles. ○ In order to create absolute liability, it must be found that the legislative purpose of such a statute is to protect a limited class of persons from their own inexperience, lack of judgment, inability to protect themselves or to resist pressure, or tendency toward negligence Causation ■ Factual cause ● Did defendant's breach lead to the ultimate harm? ■ Proximate cause ● Was the general type of harm reasonably foreseeable? ■ Superseding Cause ● Breaks the chain of causation ■ Res ipsa loquitur (“the thing speaks for itself”) ● Facts imply that defendant's negligence caused the accident ● Only applies if ○ Defendant had exclusive control of the thing that caused the harm ○ AND the harm would not normally occur without negligence ○ AND the plaintiff had no role in causing the harm ● If it applies res ipsa loquitur, it shifts the burden of proof to the defendant to prove that he or she was not negligent ■ Griffith v Valley of Sun Recovery INc. ● Even though Goreny was the one present, under “respondeat superior” his employer can be held liable for the negligence of its employee (Goreny) who was acting within the scope of his employment ● Under the Palsgraf doctrine, a duty of due care owed to neighbors ○ b/c he knew that his activities were stirring up neighbors to believe that a car theft was in process, knew that attempts to repossess the car had led to prior confrontation, had removed lighting ● Breach was a factual cause of the injury ● Breach was probably (up to the jury to decide) a proximate cause of the injury

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Not negligence per se b/c statue needs to proscribe the specific acts, the general requirement that the repossession must be done peacefully is too vague

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Damages ■ Showing injury is an element of plaintiff’s negligence case ■ Plaintiff must persuade the court that the harm is genuine and not just speculative ● Single Recovery Principle ○ The plaintiff may need to establish in “this” negligence suit that he or she suffered non-speculative injury, which may not manifest itself until far in the future ■ Plaintiff must also persuade the court that he or she suffered the harm - not someone else ■ Ra v Superior Court ● Must prove she is closely related to the injury victim = wife ● Must be present at the scene of the injury-producing event at the time it occurs and was then aware that it is causing injury to the victim ○ Although her emotional distress caused by fear when she heard the bang was no doubt real and substantial, the wife did not know at the time of his involvement ○ Example: Palsgraf v Long Island Railroad ■ Risk reasonably to be perceived defines the duty to be obey. Negligent conduct resulting in an injury will result in a liability only if the actor could have reasonably foreseen that the conduct would injure the victim. A defendant owes a duty of care only to those in the reasonably foreseeable zone of danger ➢ Defenses to Negligence ○ Contributory Negligence States ■ Plaintiff who also negligent cannot recover ○ Comparative Negligence States ■ Plaintiff who was partially negligent can recover proportionally ■ But may bar recovery totally if plaintiff was more than 50% responsible ■ Wightman v Consolidated Rail Corporation ● Reasonable compensatory damages were 1 million, both wightman and the railroad company bore some degree of fault ○ If it was contributory negligence would recover zero ○ If it was comparative negligence, the degree of negligence was allocated railroad 60% and Wightman 40%. Thus Wightman recovered 600,000 in compensatory damages, not 1 million ■ But in many comparative negligence states, if the respective degrees of comparative fault had been reversed, then Wightman would have recovered zero b/c more than 50% responsible

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Assumption of Risk

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Person who voluntarily enters situation that has an obvious danger cannot recover for resulting injury ● The doctrine does not apply if the person is injured in a way that is not inherent part of the dangerous activity Truong v Nguyen ● Application of the primary assumption of risk doctrine recognizes that by choosing to participate, individuals assume that level of risk inherent in the sport ● In the absence of other considerations, the doctrine of primary assumption of risk applies generally to the recreational activity of using a Sea-Doo, just as it does to similar sports, such as water-skiing

➢ Strict Liability ○ Ultrahazardous Activity ■ Defendant engaging in ultrahazardous activity is almost always liable for resulting harm; plaintiff does not need to prove duty or breach of foreseeability ■ Examples: dynamiting buildings ■ New Jersey Department of Environmental Protection v Alden Leeds, Inc. ● Air Pollution Control Act of 1954 and its implementing regulations, impose strict liability for civil penalties on the owner or operator of a chemical facility that releases toxins into the atmosphere b/c of a fire of unknown origin ○ Defective Products ■ That is, product sold (by a seller normally engaged in selling such goods) in defective condition unreasonably dangerous to the user and the product reaches the user without substantial change ● Privity not required for such strict liability defective product claims and use of reasonable care is no defense...