Litigation and Procedure Negligence and Strict Liability

1. Litigation and Procedure Negligence and Strict Liability

2. Negligence“The Unintentional Tort” • 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(Proximate cause)-- it must have been foreseeable that the action would cause this kind of harm. • Injury-- the plaintiff must have been hurt. To win a negligence case, the plaintiff must prove that the defendant failed in five areas:

3. Duty of Due Care • If a Defendant could have foreseen injury to a particular person, he/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 a “dram act,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm.

4. Breach of Duty • A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances.

5. 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.

6. Car accident, car hitting bicyclist Mechanic is liable to cyclist Car accident, car hitting bicyclist Car accident, but car does not hit bicyclist Example: Factual Cause & Foreseeable Harm Mechanic fails to fix customer’s brakes, which causes... Factual cause and foreseeable type of injury Noise from accident startles someone who falls out a window Mechanic is NOT liable for falling person Factual cause, but no foreseeable type of injury Bicyclist hits pothole and crashes Mechanic is NOT liable to cyclist No factual cause

7. Injury & Damages • Injury-- plaintiff must show genuine injury • Future injury may be compensated, but must be determined at the time of trial. • Damages-- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

8. Defenses • Assumption of the Risk • A person who voluntarily engages in an activity known to be risky cannot recover if he is injured. • Contributory Negligence • In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages. • 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.

9. Negligence per se • Definition • Violation of a standard of care set by statute. • Example • Driving while intoxicated is illegal; if a drunk driver injures a pedestrian, he has committed negligence per se. • Elements: • Statute prohibits or requires action. • Defendant’s actions violate statute. • Plaintiff’s injuries are the kind the statute was designed to protect against. • Plaintiff is within the group the statute was designed to protect.

10. 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 ultrahazardousactivity is wholly liable.

11. Negligence Did Defendant owe Plaintiff a duty? Yes Did Defendant breach the duty? Yes Plaintiff recovers Was the breach the actual cause of Plaintiff’s injury? Yes Was the breach the proximate cause of Plaintiff’s injury? Yes No No No No Was Plaintiff also at fault? Yes Plaintiff does not recover Plaintiff might recover No Is it a comparative negligence state? Yes No

12. Torts Committed by Business • Vicarious Liability -- if someone commits a tort within the scope of his employment, the company is liable.

13. Compensatory Damages • A jury may award compensatory damages -- payment for injury -- to a plaintiff who prevails in a civil suit. • The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely. • Damages may include money for three purposes: • to restore any loss (such as medical expenses) caused by the illegal action • to restore lost wages if the injury kept the defendant from working • to compensate for pain and suffering

14. Punitive Damages • While the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party. • Intended for conduct that is outrageous and extreme • Designed to “make an example” out of the defendant • Should deter others from doing same conduct and prevent this defendant from repeating actions • Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded.

15. End ofNegligence andStrict Liability