Dynamic business law 4e kubasek 4e CH09

• LO9-2: What are the doctrines that help a plaintiff establish a case of negligence?. • LO9-4: What are the elements of strict liability?... Chapter 9 Hypothetical Case 1compensation, a

Chapter 9

Negligence and Strict Liability

• LO9-1: What are the elements of negligence?

• LO9-2: What are the doctrines that help a plaintiff establish a case of negligence?

• LO9-3: What are the defenses to a claim of negligence?

• LO9-4: What are the elements of strict liability?

Chapter 9 Hypothetical Case 1

compensation, a state-administered system through which workers are compensated for work-related

injuries Generally, to prove a workers' compensation claim, a worker need only demonstrate that he or she

sustained a work-related injury by accident arising out of the course and scope of employment Negligence

of the employer or employee is essentially irrelevant

relative fault of the employer and employee? Explain your response

Chapter 9 Hypothetical Case 2

manufacturing company located in Topeka, Kansas One day, while walking on the public sidewalk

immediately adjacent to the Bill-Bo Bowling Balls building, a bowling ball fell on Richard Weber, causing

severe (but fortunately, non-fatal) injuries to Weber A sole witness, Anne Marie Norton, saw the bowling

ball fall from a second-story window of the building and strike Weber, but she was not able to identify the

perpetrator

Bowling Balls, Inc as co-defendants in the case Will Weber and his attorney, Ayre, succeed in the litigation?

• Definition:

• Behavior that creates an unreasonable risk of harm to others; the failure to exercise reasonable care to protect

another's person or property

• Elements of negligence

• Duty: The standard of care a reasonable person owes another (reasonable person standard)

• Breach of duty: Failure to live up to the standard of care

• Causation: Actual cause and proximate cause

• Damages: A compensable loss suffered by plaintiff

Elements of Causation

• Actual cause (cause in fact): Defendant's breach of duty resulted directly

in plaintiff's injury; "but for" defendant's breach of duty, plaintiff would

not have been injured

• Proximate cause (legal cause): Extent to which, as a matter of policy, a

defendant may be held liable for the consequences of his actions; in most

states determined by if plaintiff and plaintiff's damages were reasonably

foreseeable when defendant breached his duty to plaintiff

Types of Damages

• Compensatory damages: Damages intended to reimburse plaintiff for his/her losses

(consistent with purpose of tort law)

• Punitive damages (exemplary damages): Imposed to punish defendant and deter

others from committing similar acts; usually reserved for cases of gross negligence,

involving defendant's extreme, reckless disregard for property/life of others

Plaintiff's Doctrines

• Res ipsa loquitur: Permits judge/jury to infer that defendant's negligence caused plaintiff's harm (in cases

where no direct evidence of defendant's lack of due care)

• Event was of a kind that ordinarily does not occur in the absence of negligence

• Other responsible causes, including the conduct of third parties and plaintiff, have been effectively ruled out

• Indicated negligence was within scope of defendant's duty to plaintiff

statute enacted to prevent certain type of harm

Defenses to Negligence

• Contributory negligence: Allows defendant to avoid liability by showing that plaintiff's own

conduct contributed to plaintiff's harm

• Comparative negligence: Allows apportionment of liability between plaintiff and defendant,

according to degree of responsibility each bears for plaintiff's harm

• Assumption of the risk: Allows defendant to avoid liability by showing that plaintiff willingly

engaged in an activity where harm foreseeable

• Special defenses to negligence include Good Samaritan statutes and establishing a superseding

Strict Liability Doctrine

• Imposes liability without fault (i.e., no evidence of defendant's intent to

harm or negligence required)

• Persons who engage in activities so inherently dangerous that no amount

of due care can make them safe are strictly liable, regardless of degree of

care they used when undertaking the activity

Chapter 9 Hypothetical Case 3

• Don Streater is driving his new Mustang on a two-lane road, Highway 101, on the outskirts of town The speed limit on Highway 101 is 45 miles per hour

Albert Hunt is also driving on Highway 101, heading in the opposite direction from Streater Hunt looks to his passenger seat to find a map, when he veers

across the center line into Streater's direction of travel The two cars collide; luckily, neither man is killed, but Streater is seriously injured In financial terms,

his medical injuries, medical expenses, and pain and suffering are estimated at approximately $100,000.

Streater sues Hunt, alleging negligence on the part of the defendant The evidence at trial establishes that defendant Hunt was traveling at 50 miles per hour,

had consumed three beers at lunch approximately 30 minutes before the accident occurred, has 20/50 uncorrected vision, and was not wearing his

prescription eyeglasses at the time of the accident Evidence at trial also establishes that Streater was traveling 50 miles per hour at the time of the accident,

and was not wearing his seat belt.

• Should the jury return a verdict in favor of Streater in the amount of $100,000 (representing his medical injuries, medical expenses, and pain and suffering),

plus the associated costs of litigation? Does it matter whether the state in which the accident occurred recognizes the contributory or comparative negligence

Chapter 9 Hypothetical Case 4

• Hollis McMurtry had been looking forward to his birthday celebration all month A new nightclub,

TwentyfiveEleven, was scheduled to open just a day before, and his friends had planned his birthday

bash there

After a long evening of partying, and after McMurtry had consumed many drinks, he slipped on the

club's very slick marble flooring in the bathroom and suffered a concussion and a deep cut to the face

on a sharp piece of door hardware The wound left a large scar on his face, which his doctors told him

would require extensive plastic surgery to repair Fearing that McMurtry would sue, and that others

may suffer similar injuries, the club's owners quickly replaced the bathroom flooring and removed the

hardware that caused McMurtry's injury

• McMurtry's attorney, Jericka Dorland, advised him that she will invoke the doctrine of res ipsa loquitor

in a lawsuit against the club Why did Dorland choose res ipsa loquitor for this case? Is the club

completely liable for McMurtry's injuries?