Negligence PDF

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Discussion of what negligence is and how it applies to business...

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Four Elements of Negligence: ○ Duty of Care: Defendant owes a duty of care if a risk of harm is reasonably foreseeable ○ Breach of Duty: If there is a duty, you must determine whether the defendant breached the duty, which is determined by asking whether the defendant acted as a reasonable person ○ Causation: Plaintiff must show that the breach was the actual and proximate cause of the plaintiff’s injuries ○ Damages: Plaintiff must prove injuries/damages Kesner Case ○ George worked with asbestos, known to cause mesothelioma, at a company called Abex ■ It attached to his clothes and came home with him ■ His nephew got mesothelioma from the asbestos ○ Does Abex have a duty of care to people in the household of employees? ○ The court decided: ■ One does not have to perceive the exact injury in order to have a duty to someone ■ Just because some other step has to happen before the harm occurs before the harm occurs does not mean that an injury is not foreseeable ■ For public policy consideration, the relevant inquiry is the burden that will be placed on the defendant to comply with the duty, as well as who is in the position to prevent the injury Currie v. Chevron U.S.A., Inc. ○ A couple was having a fight outside of the Chevron station, gas station attendant didn’t call the police ○ One of the women came into the gas station and asked the attendant to to turn on the gas at a pump despite there not being a car there ■ This allowed the woman to douse the other woman in gasoline and light her on fire ○ A customer came in before the woman was on fire and advised the attendant to call the police ○ Foreseeable risk of injury: There must be evidence that the alleged negligent act created a foreseeable, unreasonable risk of harm ■ Need to show how a reasonable person would act in similar circumstances AND that the risk of injury was foreseeable Three classifications of property visitors: ○ Invitees: People who are invited to enter the property for business purposes or on public property for public use ■ In some states (including Indiana) social guests are considered invitees ■ Duty to invitees = Reasonable care to protect against dangers you know or should know about ○ Licensees: People who enter property for their own purpose but with the possessor’s consent (stated or unstated) ■ Duty to licensees = Warn of non-obvious dangers/don’t willfully injure ○ Trespassers: People who enter property without permission or any other privilege to enter the property ■ Duty to trespassers = To not willfully or wantonly injure Generally, you don’t have a duty to prevent someone from committing a crime Negligence Per Se: A defendant’s violation of of a law can classify as a breach of duty if plaintiff: ○ Was in the class of persons that the law violated was intended to protect ○ Suffered harm of sort that the law or other law was intended to protect against ○ Can be based on any law, including a local ordinance Causation: ○ Actual cause: “but for” causation (or substantial factor) ○ Proximate cause: Foreseeability is key, is the plaintiff’s injury a foreseeable, natural consequence of the defendant’s act or omission ■ Zone of Danger Test ■ The more events that happen between the act of negligence and the injury, the less likely that proximate cause exists ○ Later acts and Intervening Causes: If the later event is not foreseeable, defendant will not be liable because it breaks the causal connection between the original negligent act and the injury ■ The defendant could be liable if the injury caused by the unforeseeable event is identical to the harm that could have been foreseen from the original negligent conduct Black v. William Insulation Co. ○ Williams Co. was employing workers in an area that was not close where the workers live ■ They compensated employees to pay for a motel room or apartment closer to the worksite so they wouldn’t have to travel so far ○ One employee worked two jobs and pocketed the compensation, so he drove 90 miles to work and was exhausted ■ One day, he fell asleep at the wheel and got into a car crash that killed someone ■ A relative of the deceased sued William Insulation Co. on the grounds of his employment being a proximate cause of the Black’s death

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The court ruled in favor of Williams Co. because the company had no reports of the employee being tired, the employee was working a separate, second job and the company was compensating employees so they didn’t have to travel ■ The event was not foreseeable Stahlecker v. Ford Motor Co. ○ Woman is driving on a backroad when her tires goes out ○ While she’s waiting for help, a man picks her up, rapes, and kills her ○ A relative sues Ford for making a faulty tire ■ On the grounds of actual cause, if the tire hadn’t broke, she wouldn’t have been stuck on the road and picked up ■ The court ruled that proximate cause did not exist ● No one could have anticipated that there would be a criminal on the road when the car broke down “Res ipsa loquitor” = The thing speaks for itself ○ Even without evidence that the defendant was negligent, the defendant was in control of the situation ○ The injury could not have occurred unless the defendant was negligent ■ Plaintiff was not responsible for their own injury Defenses to Negligence Claims: ○ Contributory negligence: In some states, any negligence on the part of the plaintiff will bar plaintiff from recovering any damages ■ Typically applies when suing government entities ○ Comparative fault: Total damage recovered are reduced by percentage of plaintiff’s fault ■ Used by most states ■ Pure: Even if the plaintiff is more than 50% responsible, plaintiff can still recover whatever percentage defendant is responsible for ■ Mixed: If plaintiff is 50% or more at fault, they can’t recover any damages ○ Assumption of Risk: If plaintiff voluntarily consents to a known danger, he may not be able to recover for damages ■ Assumption can be inferred from the circumstances ■ Can also assume risk based on an exculpatory clause in a contract Strict Liability: Liability without fault ○ Applies to an abnormally dangerous activity ○ In some states, owners are strictly liable if their dog bites and injures someone ○ Toms v. Calvary Assembly ■ A church had a fireworks display on their land, which was adjacent to a farmer’s land who owned cows ■ Although the church followed every safety precaution, the fireworks disturbed the cows ● The cows stampeded and four died ● Toms sued for damages ■ The court applied a six factor test to determine if fireworks are an abnormally dangerous activity ● The most important factor was whether or not the activity was appropriate to the location ■ The court ruled fireworks were not inappropriate or abnormally dangerous Negligence and Product Liability ○ Negligent Manufacture: Something went wrong in the manufacturing process ○ Negligent Inspection: The manufacturer failed to inspect or find a defect ○ Negligent Failure to Warn: Company fails to warn consumer of a hidden danger that accompanies the product ○ Negligent Design: Failure to design product to avoid reasonably foreseeable risks of harm ■ Factors: ● Severity of foreseeable harm ● Industry practices ● State of the Art (can it be designed safely?) ● Government safety regulations ■ Other factors: ● Social utility of design ● Availability/Effectiveness of alternative designs ● Cost of safer designs...