Negligence And Strict Liability Negligence Negligence is conduct that falls below the level necessary to protect others from unreasonable risk of harm. Negligence Prima Facie Elements in most states: Duty Breach of duty (aka negligent in some states) Causation Actual and proximate Damages 1
Breach of Duty The basic idea behind negligence law is that each of us has a duty to behave in a way that protects others from unreasonable risk of harm. Duty: The Reasonable Person Standard Each of us must act like a reasonable person of ordinary prudence in similar circumstances would (duty of care) e.g., Driving Courts weigh the seriousness or magnitude of foreseeable harm or the social utility of defendant s conduct with the ease or difficulty of avoiding the risk. Special Duties Professionals must exercise the knowledge, skill, and care ordinarily possessed and employed by members of the profession. e.g., Doctors, lawyers, accountants Common carriers and (sometimes) innkeepers must exercise great caution to protect passengers and lodgers against personal injury (extremely high duty of care) Common carrier n. 1. One that is in the business of transporting the public, goods, or messages for a fee 2
Special Duties: Premises Liability Traditionally, the degree of responsibility owed by an owner or occupier varies according to the status of the person who is injured, e.g., Invitees or business visitors, Licensees, Trespassers However, traditional distinctions have been eroded in many states, especially between invitees and licensees. Many states (CA, inter alia) impute a possessor of premises with a duty to lawful entrants to use reasonable care to maintain the premises in a safe condition and a duty to use reasonable care to learn of the existence of any dangerous or unsafe conditions on his premises that could cause harm to anyone. In such states, the property possessor also has a duty to warn of concealed perils that he knows about or should know about, through the exercise of reasonable care. Modern courts also hold landowners to a higher duty of care for trespassers known to regularly enter land, and to children. CA-specific info: http://www.kinseylaw.com/clientserv2/civillitigationserv/premise s/premisesliability.html Negligence Per Se Defendant s violation of a statute, code, or regulation may constitute a breach of duty and thus breach need not be proven as part of plaintiff s prima facie case essentially a strict liability effect. Plaintiff must be within the class of persons the statute was designed to protect. Plaintiff must suffer the type of harm the statute was intended to prevent. Examples: A vehicle with nonfunctioning brake lights causes an accident. See Carman v. Dunaway Injury (Damages) Plaintiff may recover for personal injuries and property damage. Included in the damages Economic losses Medical bills, lost wages, property damage, etc. Non-economic losses Pain and suffering, mental anguish, etc. Negligent Infliction of Emotional Distress Most courts allow recovery for foreseeable tangible emotional injuries that result from defendant s negligent conduct. Separate tort in many states CA: Direct victim and bystander COA s 3
Causation Was there actual causation between the breach and injury? Was the breach the proximate cause of the injury? What was the effect of any intervening force? Actual Causation But for test plaintiff s injury would not have occurred except for defendant s breach of duty. Substantial factor when the negligence of two people combine to cause plaintiff s injury, each is liable if his conduct is a substantial factor causing the injury. Proximate Cause There has to be a degree of proximity or closeness between the defendant s breach and plaintiff s injury. A variety of tests are used to determine defendant's liability. The natural and probable consequences of his actions. Within the scope of foreseeable danger. Foreseeable injuries. 4
Intervening Forces An intervening force is one that occurs after defendant s breach of duty which contributes significantly to plaintiff s injury. Relieves defendant of liability if it is superseding (unforeseen). e.g., Drunken ambulance driver crashes on way to fire Distinguish: Unforeseeable harm identical to harm risked by defendant s negligence e.g., Human torch at rock concert w/out enough emergency exits Forseeability Exceptions Defendant is liable for all of the injuries that he proximately caused regardless of the foreseeability of plaintiff s susceptibility to injury. Negligence defendants take victims as they find them Eggshell plaintiff rule Defendant is liable for injuries sustained by those attempting to avoid being injured by his negligence. e.g., injuries caused by swerving to miss negligent driver Defendant is liable for injuries caused by a third party s nonreckless attempt to rescue plaintiff. Danger invites rescue Res Ipsa Loquitur The thing speaks for itself The defendant has exclusive control of the instrumentality of harm. The harm that occurred would not normally occur absent negligence. Plaintiff was in no way responsible for his own injury. Often employed in cases wherein defendant has knowledge of facts superior to that of plaintiff. e.g., Barrel of flour falls on head of plaintiff. Creates an inference or presumption of negligence and causation. 5
Negligence Defenses Contributory Negligence Old school, minority rule Comparative Negligence Vast majority of states (CA) Assumption of Risk Contributory Negligence Minority rule very few jurisdictions still use Plaintiff breaches a duty to himself to exercise reasonable care for his own safety. Bars plaintiff s recovery if it is a substantial factor in producing plaintiff s injury. A plaintiff with contributory negligence may still recover if the defendant had the last clear chance to avoid the injury. Comparative Negligence Where both plaintiff and defendant are negligent, the relative negligence of the parties is weighed to award damages in proportion to fault. Developed in 20 th Century to eliminate harsh impact of all-or-nothing contributory negligence rule on plaintiffs who were only slightly negligent. 6
Comparative Negligence Plaintiff s recovery = defendant s percentage share of the negligence X plaintiff s provable damages e.g., Plaintiff has suffered $100,000 in damages, but is 40% at fault (defendant is 60% at fault), so plaintiff could only recover $60,000. $100,000 X 60% = $60,000 Pure vs. Mixed (or modified ) Pure: Damages are reduced by the amount of the plaintiff's negligence. Mixed/Modfied: Recovery is barred if the plaintiff's negligence is greater than the defendant's ("not greater than" rule or 50 percent system) or in some states: if the plaintiff's negligence is greater than 49%. Some states: plaintiff may receive damages if the plaintiff's negligence was slight in comparison to the defendant's negligence. CA: Comparative negligence (pure) since 1975 Assumption of Risk Plaintiff s implied or express voluntary consent to a known danger. Bungee jumping, skydiving, some parking lots where posted, baseball games e.g., SMC s parking lots Can be implied, but often requires notice or signed waiver (also covered in contracts) See also, Illegality: exculpatory clauses/waiver Strict Liability Liability without fault or irrespective of fault. Often called risk spreading or socializing of risk. Areas of Judicially Created Strict Liability Abnormally Dangerous Activities Product Liability (latently defective and unreasonably dangerous products) (Chapter 20) In many states, a person who possesses or harbors a dangerous animal, whether wild or domestic, is strictly/absolutely liable for injuries inflicted by it, if he knows or should know of its dangerous propensities 7
Strict liability - Abnormally Dangerous Activities Activities that necessarily involve risk of harm to others that cannot be eliminated by the exercise of reasonable care. e.g., Blasting, crop dusting, transportation of explosive materials, fireworks Statutory Strict Liability Workers compensation acts and dram shop liability laws are examples. Some products liability law is also statutorily created Vicarious liability Vicarious liability Respondeat superior. When a person is held responsible for the tort (in this case, negligence) of another even though the person being held responsible may not have done anything wrong. e.g., employers are held vicariously liable for the damages caused by their employees in course-andscope of employment; Also parent-child liability. 8
Joint and Several Liability If two or more defendants are found liable for an indivisible injury, the defendants will be held jointly and severally liable. Each defendant is liable for the entire award regardless of the individual degree of fault. Because a so-called "deep pocket" defendant may be held liable for an entire damage award even if such a defendant is only fractionally liable, California has modified the doctrine of joint and several liability for personal injury cases. To apportion financial liability closer to the degree of fault, California does not apply several liability for noneconomic damages. Economic damages" means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities. Non-economic damages" means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation. Tort Reform Liability insurance crisis Refusals/reductions in coverage, escalating premiums Increasing awards for punitive damages and noneconomic injuries Business costs (e.g., healthcare, cost of products to consumers) Most states enacted tort reform legislation since the 1990s. Limit defendant s tort liability. e.g., limitations on dram shop liability Limit what plaintiffs can recover for damages. CA: California places a cap on non-economic damages for medical malpractice cases. Cal. Civ. Code 3333.2 (West 1997). Noneconomic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary injury, are limited to $250,000. Less push for tort reform with Democratic control of Congress Negligence And Strict Liability 9