NEGLIGENCE AND STRICT LIABILITY

Chapter 4

Which tort?

1. You enter a department store where they have just cleaned the floor. The floor is still wet, and no signs are posted. You slip and break your arm.

Negligence• Negligence is an unintentional breach of

duty by the defendant that results in harm to another• Elements

• Defendant had a duty not to injure the plaintiff

• Defendant breached that duty

• Defendant’s breach of duty was actual and legal (proximate) cause of the plaintiff’s injuries

• Actual injury or loss

Negligence• Duty

• Reasonable person of ordinary prudence in similar circumstances

• Negligent per se

• Breach• Courts ask whether the defendant did

something a reasonable person would not have done, or failed to do something the reasonable person would have done

Negligence• Causation

• Cause in fact• Actual or direct cause

• Proximate Cause• Proximate results of the negligence

• Forseeability• Was the injury foreseeable?

• Was the intervening force foreseeable?

Negligence• Res Ipsa Loquitur

• “The Thing Speaks for Itself”• If the defendant had exclusive control of the

thing that caused the injury, and the injury that occurred would not ordinarily happen in the absence of negligence, an inference of negligence is created, and the burden shifts to the defendant to show that the injury was not caused by his or her negligence

• Negligent Infliction of Emotional Distress

Negligent Infliction of Emotional Distress

• Would a reasonable person, normally constituted, be unable to adequately cope with the mental stress

• Usually, recovery is possible where• П also sustained an injury or impact, or• П was in the “zone of danger” or• П witnesses death or injury of a close relative

Negligence

• Defenses to Negligence• Contributory Negligence/ Comparative

Negligence• Last Clear Chance• Assumption of Risk

• Recklessness

See Walt Disney World v. Goode,501 So.2d 622 (FL 1986).

Which tort?

1. An engineering company was blasting with dynamite to enlarge a river channel. A hotel was within 230 feet of some of the activity. Over a period of six months, many water and heating pipes in the hotel were broken, causing water damage, plaster was cracked, and a floor was split. The intensity of the vibrations of the earth resulting from the explosions was sufficient to cause the damage. The parts of the structure, which were damaged, had been in good condition.

Strict Liability• Liability Without Fault

• A person who participates in certain kinds of activities is held responsible for any resulting harm to others, despite the use of the utmost care and caution.

• Absolute duty to make the situation safe• Eliminates the requirement for П to prove lack of

due care on Δ’s part

• Defense• Assumption of Risk• Some states, comparative negligence

Which tort?

1. Mr. Greenman saw a Shopsmith, a combination power tool that could be used as a saw, drill, and wood lathe, demonstrated by a retailer and studied a brochure prepared by the manufacturer. He bought the Shopsmith and the necessary attachments to use the Shopsmith as a lathe for turning a large piece of wood he wished to make into a chalice. After he had worked on the piece of wood several times without difficulty, it suddenly flew out of the machine and struck him in the forehead, inflicting serious injury.

Current Issues

• Tort Reform Measures• Crisis in the liability insurance

• Higher premiums

• Reductions in coverage

• Refusal to cover certain activities