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Unformatted text preview: CHAPTER 7 CHAPTER 7 NEGLIGENCE AND STRICT LIABILITY When someone's person or property is hurt, When someone's person or property is hurt, how far should society extend liability? The law has struggled for centuries to find compensation for the injured without making every citizen the insurer of all others. NEGLIGENCE NEGLIGENCE Harm arises by accident Palsgraf v. Long Island Railroad Co. (1928) Five Elements of Negligence 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 ­­ it must have been foreseeable that the action would cause this kind of harm. Injury ­­ the plaintiff must have been hurt. The McDonald’s Hot­Coffee Case The McDonald’s Hot­Coffee Case The coffee that burned Liebeck was 180 degrees, 15­20 degrees hotter than coffee typically served in restaurants. The jury considered whether McDonald's acted improperly in selling 180­degree (or hotter) coffee that was significantly hotter than a consumer would expect from common experience. Stella Liebeck incurred third­degree burns, received skin grafts, and spent seven days in the hospital. Testimony at trial showed that before the lawsuit, McDonalds had received over 700 complaints about burns, some of them third­degree, suffered by customers who spilled coffee on themselves. A McDonalds' executive testified that McDonalds knew of the risk of burns caused by its hotter­than­average coffee and knew that most customers didn't realize the specific risk posed by coffee at those temperatures, but nevertheless didn't intend to warn customers of the risk. The suit was not about a mere failure to warn that coffee is hot; it was about failure to warn of the danger created by serving materially hotter­than­normal coffee to customers who knew they were buying something hot, but not THAT hot. These facts, of course, cannot be construed only to support a finding that McDonald’s was negligent. NEGLIGENCE NEGLIGENCE Duty of Due Care Did the defendant have a duty of care to the injured person? Generally, the standard is “foreseeability” Hernandez v. Arizona Board of Regents (1994) Affirmative Duty to Act Duty of Due Care If a defendant could have foreseen injury to a particular person, she has a duty to him. Affirmative Duty to Act ­­ In general, the common law does not require a bystander to assist a person in danger. There are special rules for liability of landowners. (See next slide.) 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 “dram shop laws,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm. Hernandez v. Arizona Board of Regents ­ p. 154 Hernandez v. Arizona Board of Regents Facts: The University of Arizona chapter of Delta Tau Delta fraternity gave a welcoming party for new members. The fraternity’s officers knew that the majority of its members were under the legal drinking age, but permitted everyone to consume alcohol. Minor John Rayner left the party, drove negligently, and caused a collision with an auto driven by Ruben Hernandez. Rayner’s blood alcohol level was 0.15, exceeding the legal limit. The crash left Hernandez blind, severely brain damaged, and quadriplegic. Hernandez sued Rayner, who settled the case. Hernandez also sued the fraternity, its officers and national organization, all fraternity members who contributed money to buy alcohol, the university, and others. The trial court granted summary judgment for all defendants and the court of appeals affirmed. Hernandez appealed to the Arizona Supreme Court. Issue: Did the fraternity and the other defendants have a duty of due care to Hernandez? Holding: Judgment for defendants reversed and case remanded for trial. Hernandez v. Arizona Board of Regents ­ p. 154 Hernandez v. Arizona Board of Regents Excerpt from the court’s opinion: Traditional authority held that when "an able­bodied man" caused harm because of his intoxication, the act from which liability arose was consuming, not furnishing, the alcohol. However the common law also provides that: One who supplies [a thing] for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise to use it in a manner involving unreasonable risk of physical harm to himself and others is subject to liability for physical harm resulting to them. A growing number of cases have recognized that one of the very hazards that makes it negligent to furnish liquor to a minor is the foreseeable prospect that the [youthful] patron will become drunk and injure himself or others. Accordingly, modern authority has increasingly recognized that one who furnishes liquor to a minor breaches a common law duty owed to innocent third parties who may be injured. We join the majority of other states and conclude that as to Plaintiffs and the public in general, defendants had a duty of care to avoid furnishing alcohol to underage consumers. Arizona courts, therefore, will entertain an action for damages against [one] who negligently furnishes alcohol to those under the legal drinking age when that act is a cause of injury to a third person. Hernandez v. Arizona Board of Regents ­ p. 154 Hernandez v. Arizona Board of Regents Question: The two lower courts found for all defendants. Why? Answer: Presumably, they found that the defendants had no duty to Hernandez or the general public. They would both have found that Rayner, the driver, had a duty, but not someone who buys or pours alcohol. Question: What is the logic behind the lower courts’ position that a person or organization that pours alcohol has no duty to the general public? Answer: Historically, courts have held that it is a drunk driver who brought the harm on himself and others by getting intoxicated, and that injured parties could look only to the driver for compensation. Courts often held that a host, whether a social host (private person) or an organizational host (such as a bar or fraternity), either: could not foresee the harm, or, as a matter of public policy, should not be liable for such harm, because extending liability that far would inhibit social events and would create an almost endless field of potential liability. NEGLIGENCE NEGLIGENCE Landowner’s Duty to Act Lowest Liability: Trespasser Occasional Liability: Children A trespasser is anyone on the property without consent Only liable for intentional injuries or other gross misconduct The law makes exceptions when trespassers are children Attractive nuisances A licensee is anyone on the land for her own purposes but with the owner’s permission Entitled to a warning about hidden dangers that the owner knows about An invitee is someone on the property as of right because it is a public place or business open to the public The owner has a duty of reasonable care to the invitee Higher Liability: Licensee Highest Liability: Invitee NEGLIGENCE NEGLIGENCE Victims of criminal attacks, unable to obtain compensation from the perpetrator of the assault, are now likely to sue the owner of the premises where the crime occurred. NEGLIGENCE NEGLIGENCE Crime and Tort: Landowner’s Liability Breach of Duty Wiener v. Southcoast Childcare Centers, Inc. (2004) Courts apply the reasonable person standard: a defendant breaches his duty of due care by failing to behave the way a reasonable person would have under similar circumstances Professionals will be held to a higher standard in certain cases Wiener v. Southcoast Childcare Centers, Inc. ­ p. 156 Wiener v. Southcoast Childcare Centers, Inc Facts: Southcoast operated a child­care facility on a busy street corner property that it leased from First Baptist Church. A chain link fence enclosed the playground located adjacent to the sidewalk and street. Steven Abrams intentionally drove his Cadillac through the fence, onto the playground and into a group of children, killing two children and injuring many others. Abrams was convicted of first degree murder. Parents of killed and injured youngsters sued Southcoast and the church, alleging that the defendants knew the fence was inadequate to protect the children. The trial judge granted summary judgment for the defendants, ruling that Southcoast and the others owed no duty to prevent such harm. The appellate court reversed, and Southcoast appealed. Issue: Did Southcoast have a duty to the plaintiffs to prevent this kind of harm? Wiener v. Southcoast Childcare Centers, Inc. ­ p. 156 Wiener v. Southcoast Childcare Centers, Inc Holding: Judgment for plaintiffs reversed. Plaintiffs alleged that defendants were aware the chain link fence in front of the property provided inadequate protection, and that the owner of Southcoast had previously requested that the Church provide funds to erect a higher fence. There had been a few noninjury traffic accidents near the property. Once a mail truck driver fell out of his truck, which took off and bounced over the curb and went through the fence before coming to a stop at a tree inside the yard. Other traffic incidents occurred near the premises involving vehicles that hit the curb. Plaintiffs argued that it did not matter whether the driver of the vehicle that killed the children acted negligently or with criminal intent, because the risk of harm from an unsafe fence was the same, and that defendants owed a duty to make the fence stronger. The Court of Appeals emphasized the “kind of harm” the plaintiffs’ children suffered rather than the criminal act. The court observed that the nature of the harm—being struck by an automobile driven onto the playground—was not dependent on the driver's criminal state of mind. The court opined that defendants' conduct in failing to erect a sturdier barrier that would have withstood the assault from the car or defendants' failure to move the children to a more protected part of the child care center, resulted in the kind of harm for which negligence liability attaches. Wiener v. Southcoast Childcare Centers, Inc. ­ p. 156 Wiener v. Southcoast Childcare Centers, Inc The court continued: Precedent requires that we apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties. A criminal can commit a crime anywhere. The burden of requiring a landlord to protect against crime everywhere has been considered too great in comparison with the foreseeability of crime occurring at a particular location to justify imposing an omnibus duty on landowners to control crime. We conclude defendants owed no duty to plaintiffs because Abrams's brutal criminal act was unforeseeable. The foreseeability of a perpetrator's committing premeditated murder against the children was impossible to anticipate, and the particular criminal conduct so outrageous and bizarre, that it could not have been anticipated under any circumstances. NEGLIGENCE NEGLIGENCE Crime and Tort Revisited: Negligent Hiring and Retention Negligence Per Se Businesses can be liable for negligently hiring or retaining employees When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statute injures a member of that group, the defendant has committed negligence per se A plaintiff who can show negligence per se need not prove breach of duty NEGLIGENCE NEGLIGENCE Factual Cause and Foreseeeable Harm Factual Cause If the defendant’s breach physically led to the ultimate harm, it is the factual cause For the defendant to be liable, the type of harm must have been reasonably foreseeable Foreseeable Type of Harm DO NOT CLICK! Let slide “build” on its own. Ex: Factual Cause & Foreseeable Ex: Factual Cause & Foreseeable Harm Mechanic fails to fix customer’s brakes, which causes... Car accident, car hitting bicyclist Mechanic is liable to cyclist Factual cause and foreseeable type of injury Car accident, car hitting bicyclist 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 Car accident, car does not hit bicyclist Bicyclist hits pothole and crashes Mechanic is NOT liable to cyclist No factual cause NEGLIGENCE NEGLIGENCE Res Ipsa Loquitur (“the thing speaks for itself”) The facts imply that the defendant’s negligence caused the accident Defendant then has to show that he or she did not cause the harm Applies only when The defendant had exclusive control of the thing that caused the harm The harm normally would not have occurred without negligence The plaintiff had no role in causing the harm Griffith v. Valley of Sun Recovery, Inc. ­ p. 162 Griffith v. Valley of Sun Recovery, Inc Facts: Don Gorney, a repossession man who worked for Valley of Sun Recovery, attempted to repossess Marsalek's car. He arrived at 4:00, unscrewed an overhead street lamp, and then unlocked the car, setting off its alarm. Neighbors investigated and called the police, while Gorney hid. When they had left, he again set off the car alarm, bringing out various neighbors, including Griffith. One neighbor passed a shotgun to another, but it went off accidentally and severely injured Griffith, who sued Valley of Sun. The trial court granted summary judgment for Valley of Sun, and Griffith appealed. Questions: • Did Valley of Sun have a duty to Griffith? • If so, did the company breach its duty? • If so, was the breach the factual cause of the injury? • If so, was this type of injury foreseeable? Griffith v. Valley of Sun Recovery, Inc. ­ p. 162 Griffith v. Valley of Sun Recovery, Inc Holding: Summary judgment for Valley of Sun reversed and remanded for trial. The court held “if reasonable minds could differ and there is a debatable question on the foreseeability of harm, then such an issue is ordinarily a question for the jury. In [this] case, previous efforts to take possession of the car were frustrated by the car burglar alarm. Gorney was aware of the violent confrontation that had occurred in a prior attempt. Gorney’s actions created an explosive atmosphere, created confusion, and set the stage for the resulting injury. The facts present a jury question as to whether a reasonable man could have foreseen that his actions were creating a confrontation where someone could be injured.” On the issue of superseding cause, the court relied on the fact that Gorney was in the driver's seat of the car, with the neighbor pointing the shotgun at Gorney from outside the passenger window, when the neighbor passed the gun to Williams, the gun discharged, and Griffith was shot. Since Gorney's (and Valley of Sun's) conduct continued up until Griffith was injured there was no superseding cause under Arizona law. NEGLIGENCE NEGLIGENCE Injury A plaintiff must prove that he or she has been injured Bystander Cases Dillon v. Legg (1968) Damages Bystander is entitled to damages for negligent infliction of emotional distress if She was near the scene of the accident and Seeing the accident caused an immediate shock to her and She is a close relative of the victim Generally compensatory damages In rare cases, punitive damages may be awarded Injury & Damages Injury ­­ plaintiff must show genuine injury be determined at the time of trial. Future injury may be compensated, but must A bystander, unharmed physically, may recover for emotional distress if... She was near the scene of the injury, and She is a close relative of the (physical) Damages ­­ are usually compensatory, victim designed to restore what was lost. In Seeing the injury caused immediate shock, unusual cases, they may be punitive. Ra v. Superior Court ­ p. 163 Ra v. Superior Court ­ Facts: Michelle Ra and her husband Phil were shopping at an Armani Exchange when a large sign fell and hit Phil Ra causing him serious injury. At the time of the injury, Michelle Ra was standing about 10 to 15 feet away from Phil with her back to him. Although she did not see the sign fall on her husband, Michelle heard a loud bang, turned, saw her husband bent over in pain and rushed to his side. Ten days later, Michelle suffered a miscarriage, which she attributed to the accident. The Ra’s sued Armani for negligence in allowing the sign to fall, and for the emotional distress Michelle suffered. Regarding Michelle’s claim, the trial court granted summary judgment to the store, holding that Michelle had not made out a claim for bystander recovery because she did not see the accident happen. Michelle appealed. Issue: May a bystander recover for emotional distress cause Ra v. Superior Court ­ p. 163 Ra v. Superior Court ­ Holding: Judgment for Armani affirmed. Michelle testified during a deposition that she was not sure whether herhusband was involved in any kind of accident at the time she heard the loud bang, but she believed it was more likely than not that he was because the noise came from an area of the store where her husband was shopping. The State Supreme Court has held that in order to recover as a bystander for negligent infliction of emotional distress, the plaintiff must prove “(1) that she is closely related to the injury victim; (2) is present at the scene of the injury­producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress­ a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance.” The court had ruled out liability for those “who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct” instead of actually witnessing the injury­ causing event itself. In this case, Michelle did not actually see the sign fall on her husband. Without a reasonable certainty her husband was being injured by whatever cause the loud bang at the time she heard it, Michelle experienced fear that he husband may have been injured. Although that fear may have been real and substantial, it is not recoverable in a bystander claim. DEFENSES TO NEGLIGENCE DEFENSES TO NEGLIGENCE Contributory and Comparative Negligence Assumption of the Risk Under the theory of contributory negligence, if the plaintiff is even slightly negligent, she recovers nothing Under the theory of comparative negligence, if the plaintiff is even slightly negligent, a plaintiff may generally recover even if she is partially responsible. The jury will be asked to assess the relative negligence of the two parties A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured Truong v. Nguyen ­ p. 166 Truong v. Nguyen Facts: Anthony Nguyen and Rachel Truong went for a ride on Anthony’s Polaris jet ski. Cu Van Nguyen and Choung Nguyen (no relation to Anthony) were both riding a Yamaha Waverunner. Both jet skis permitted a driver and passenger, each seated. The two jet skis collided near the middle of Coyote Lake, killing Rachel and injuring the others. Rachel’s parent sued Anthony, Cu Van, and Chuong alleging they were negligent in operating the jet skis. The defendants moved for summary judgment claiming assumption of the risk applies to jet skiing. Rachel’s parents appealed arguing that jet skiing was not a sport, and Rachel had never assumed any risk. Issue: Does assumption of the risk apply to jet skiing? Holding: Yes, judgment affirmed. According to the court, in sports, assumption of the risk prohibits liability because the plaintiff assumed risks inherent in that sport by consenting to participate. Even when a participant’s conduct violates internal rules of the sport, and they may face internal sanctions, imposing legal liability for such conduct would fundamentally change the nature of the sport by deterring players to participate vigorously. An acti...
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