Chapter 7

Negligence & Strict Liability
Text + Chapter 7
Learning Objectives
• The Elements of Negligence
• Defenses to Negligence
• Special Doctrines Related to
• The elements of a negligence
claim are
– Defendant owed a duty of care to
– Defendant committed a breach of
– Breach was actual and proximate
cause of
Duty of Due Care
• In general, a defendant owed the
plaintiff a duty of reasonable care if
the plaintiff would foreseeably be at
risk of harm from the defendant’s
– A duty may arise if a special
relationship existed between the parties
• Examples of a special relationship:
doctor-patient, lawyer-client, accountant-
Williams v. Cingular Wireless
• Facts & Procedural History:
– Plaintiff was injured by a driver using a cell
phone provided by Cingular
– Plaintiff sued Cingular for negligence in
providing the cell phone
– Trial court dismissed case; Plaintiff
• Issue:
– Did Cingular owe a duty of care to the
Williams v. Cingular Wireless
• Law Applied to Facts:
– Defendant had no relationship to plaintiff
so as to create a duty
– Little or no foreseeability that the sale of a
cell phone would cause plaintiff’s injury
– Imposing a duty on defendant would not
be sound public policy
• Holding:
– Dismissal of claim against Cingular
Breach of Duty of Due Care
• If a duty existed, then the question is
whether the defendant acted as a
reasonable person of ordinary
prudence would have acted under the
same or similar circumstances
– Reasonable person standard
• The test focuses on defendant’s
behavior, not defendant’s intent
Scully v. Fitzgerald
• Facts & Procedural History:
– Plaintiff leased store property from
– Debris in an adjacent apartment building
owned by defendant caught fire and the
fire damaged plaintiff’s property
– Plaintiff sued defendant alleging that
defendant failed to use reasonable care in
maintaining the apartment building
• Issue:
Scully v. Fitzgerald
• Legal Reasoning:
– Landowner may be liable for fire if property
kept in unsafe condition and owner did not
take reasonable precautions to prevent
– Test: would reasonably prudent person
recognize and foresee an unusual risk or
likelihood of harm?
– Defendant’s exposed collection of papers
and refuse was flammable and potentially
Causation and Injury
• Injuries may include bodily or
emotional injury, and property or
economic damage
• Causal link between the alleged
misconduct and the injury requires:
7 - 10
– Actual cause: plaintiff would not have
been hurt “but for” defendant’s breach of
duty (act or omission)
– Proximate cause: plaintiff’s injury was
Causation and Injury
• An event that occurs after initial
breach of duty may worsen a plaintiff’s
– Example: plaintiff injured in accident and
while unconscious, a thief steals the
plaintiff’s wallet
• If latter event is foreseeable,
defendant will be deemed liable
• If latter event not foreseeable,
7 - 11 defendant will be absolved from
Causation and Injury
• An important doctrine concerning
causation is res ipsa loquitur (the
thing speaks for itself)
• Res ipsa applies when: (1) defendant
has total control of the instrument of
harm, (2) the harm would not occur in the
absence of negligence, and (3) plaintiff
was not responsible for his own injury
7 - 12
– Example: after abdominal surgery, patient
Contributory Negligence
• Contributory negligence is the plaintiff ’s
failure to exercise reasonable care for
his/her own safety
– Example: auto accident in which defendant rearended plaintiff but alleges that plaintiff was talking
on a cell phone and not driving carefully
• Contributory negligence used to be a
complete defense, but most states adopted
comparative negligence systems in which
court will determine the relative negligence
7 - 13
Assumption of Risk
• Assumption of risk
is the plaintiff’s
voluntary consent
to a known danger
– Example: plaintiff goes
snowboarding and
breaks leg during a fall
7 - 14
Assumption of Risk
• One can expressly assume the
risk of injury by entering into a
contract that attempts to relieve
the defendant of a duty of care
otherwise owed to plaintiff
– Such contract provisions are called
exculpatory clauses
7 - 15
Davenport v. Cotton Hope
• Facts & Procedural History:
7 - 16
– Plaintiff leased condo at defendant’s resort
and told defendant stairway floodlights
– Plaintiff injured when trying to ascend
stairs in dark
– Trial court directed a verdict against
plaintiff because he assumed the risk of
his injury
– Intermediate appellate court reversed
because under state’s comparative
Davenport v. Cotton Hope
• Issue:
– Whether assumption of risk survives as a
complete bar to recovery under South
Carolina’s comparative negligence system?
• Legal Reasoning and Holding:
– A plaintiff is not barred from recovery by
assumption of risk unless plaintiff’s degree of
fault is greater than the negligence of the
7 - 17
Special Doctrines
• Premises liability
• Negligence Per Se
• Strict Liability
7 - 18
Premises Liability Cases
• Based on the duty a property owner or
tenant has to those on the property
• Duty varies with type of person on the
– Invitee (business visitor or member of the
public): owner or tenant must exercise
reasonable care for safety of his/her
– Licensee (those on property for his own
purpose): owner or tenant obligated only
to warn licensee of hidden, dangerous
7 - 19
Delgado v. Trax Bar & Grill
• Facts & Procedural History:
– Patron of Trax causing serious physical
injury to plaintiff defendant’s parking lot
– Patron convicted of assault, filed for
– Plaintiff sued defendant for negligence and
premises liability theory
– Jury found for plaintiff and awarded
7 - 20
Delgado v. Trax Bar & Grill
• Legal Reasoning and Holding:
7 - 21
– A special relationship is an exception to
the general no-duty-to-protect rule
– Plaintiff was invitee, thus special
relationship existed
– Proprietor’s general duty owed to
invitees includes duty to take
reasonable steps to secure common
areas against foreseeable criminal acts
of third parties that are likely to occur in
Negligence Per Se
• The defendant’s violation of such laws
may create a breach of duty and may
allow the plaintiff to win the case if the
7 - 22
– (1) was within the class of persons
intended to be protected by the statute or
other law, and
– (2) suffered harm of a sort that the statute
or other law was intended to protect
Hargis v. Baize
• Facts & Procedural History:
– Widow of deceased employee sued
defendant employer (Baize) alleging that a
fatal accident was caused by the
employer’s failure to comply with a state
safety regulation
– Employer’s representative admitted:
7 - 23
• not company policy to comply with regulation, (b)
insurance representative visited two weeks before
incident and recommended compliance, and (c)
another employee was recently injured in similar
Hargis v. Baize
• Holding:
– Negligence per se principle applies
and enables plaintiff to satisfy the first
two elements of negligence, duty and
breach of duty
– Jury would need to determine the
remaining elements of negligence
7 - 24
Strict Liability
• Liability without – or irrespective – of fault
• Thus, a defendant is liable even though
s/he did not intend to cause harm and did
not act recklessly or negligently
• Imposing strict liability is a social policy
decision that risk associated with an
activity, especially an abnormally
dangerous activity, should be borne by
those who pursue it, rather than by
7 - 25 innocent persons who are exposed to that
Test Your Knowledge
• True=A, False = B
7 - 26
– A duty of due care may arise only if a
contract or statute creates such a
– Without a duty, there can be no
– Res ipsa loquitur means the thing
speaks for itself and is related to
Thought Question & Discussion
Assignment for Chapter 7
• Do you think tort reform is necessary?
7 - 27

similar documents