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Unformatted text preview: Business Law and the Regulation of Business Regulation
Chapter 8: Negligence & Strict Liability Chapter By Richard A. Mann & Barry S. Roberts Topics Covered in this Chapter Topics
I. Negligence A. Breach of Duty of Care A. B. Proximate Cause B. C. Injury D. Defenses to Negligence II. Strict Liability A. Activities Giving Rise to Strict A. Liability Liability B. Defenses to Strict Liability Breach of Duty of Care
s s s Definition of Negligence – conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. unreasonable Reasonable Person Standard – degree of care that a reasonable person would exercise in a given situation. exercise Duty to Act – except in special to Act circumstances, no one is required to aid another in peril. another Negligence and Negligence Per Se Per
Does D’s conduct violate any statute?
Yes No Does the statute expressly provide for civil liability?
Yes No Was D’s conduct reasonable under the circumstances?
Yes No Is the statute intended to protect a class of persons, which includes P, from that type of hazard and harm?
Yes D is not liable. D is liable if causation and protected harm are proven. No Reasonable Person Standard Standard
s s s s Children and those with a physical disability – must conform to conduct of a reasonable person of like age, disability, intelligence, and experience. experience. Mental Deficiency – the reasonable person standard applies despite the disability. standard Superior Skill or Knowledge – professionals Skill or Knowledge must exercise the same care and skill normally possessed by members of their professions. possessed Emergencies – the reasonable person standard applies, but the emergency is considered part of the circumstances. considered Duties of Possessors of Land Duties
Duty to Trespassers – not to injure to Trespassers intentionally. intentionally. s Duty to Licensees – to warn of known to Licensees dangerous conditions licensees are unlikely to discover for themselves. unlikely s Duty to Invitees – to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover. are
s Duties of Possessors of Land Duties
Duty to Invitee only
To exercise reasonable care to protect against dangerous conditions about which the possessor should know and which the invitee is unlikely to discover. Duty to Licensee (and Invitee)
To warn of known dangerous conditions which the licensee is unlikely to discover Duty to Trespasser (and all others)
Not to injure intentionally Cause Cause
Res Ipsa Loquitur – permits the jury to infer both negligent conduct and causation. causation. s Proximate Cause
s – Causation in Fact – the defendant's conduct was the actual cause of, or a substantial factor in causing, the injury. substantial Proximate Cause Proximate
Is there causation in fact? No No Proximate Cause No Yes
Is the harm foreseeable? Yes Proximate Cause Limitations on Causation in Fact Limitations
Unforeseeable Consequences – no Consequences liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongs. which s Superseding Cause – an intervening act that relieves the defendant of liability. liability.
Harm to Legally Protected Interest – courts determine which interests are protected from negligent interference. protected s Burden of Proof – plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest. interest.
s Defenses to Negligence
s s s Contributory Negligence – failure of a plaintiff to exercise reasonable care for his own protection, which in a few States prevents the plaintiff from recovering anything. plaintiff Comparative Negligence – damages are divided between the parties in proportion to their degree of negligence; applies in almost all States. States. Assumption of Risk – plaintiff's express consent to encounter a known danger, some states still apply implied assumption of the risk. states Defenses to a Negligence Action Defenses
Is defendant negligent? No Yes Defendant prevails Defendant prevails Yes
Has plaintiff assumed the risk? No
Is plaintiff contributorily negligent? No Defendant loses Yes
Is there comparative negligence? Yes Damages are apportioned No
Did defendant have a last clear chance? Yes No Defendant loses Defendant prevails Strict Liability Strict
s s Definition – liability for nonintentional and
nonnegligent conduct. nonnegligent Activities Giving Rise to Strict Liability
– Abnormally Dangerous Activities – involve a high Abnormally degree of serious harm and are not matters of common usage. usage. – Keeping of Animals – strict liability is imposed for wild animals and usually for trespassing domestic animals. animals – Products Liability – imposed upon manufacturers and merchants who sell goods in a defective condition unreasonably dangerous to the user. unreasonably Defenses to Strict Liability
Contributory Negligence – is not a defense to strict liability. defense s Comparative Negligence – most States apply this doctrine to products liability cases. liability s Assumption of Risk – is a defense to an action based upon strict liability. an
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This note was uploaded on 10/25/2009 for the course LAW 100 taught by Professor Liu during the Spring '09 term at Zhejiang University.
- Spring '09