Negligence and Strict Liability
1. The structure of tort remains the same whether the tort is committed intentionally or through
an act of negligence. In both cases, it must be shown that there was a duty, the duty to act
reasonably was violated, this violation caused the injury, and there was proximate cause.
a. Negligence defined: An act is negligent if it falls below the standard established by law
for the protection of others. This is another way of saying that if a person created, by his
or her behavior, a situation with potential for causing unreasonably high risk of harm, and
if someone is injured as a result, liability will follow. In determining whether a behavior
was unreasonable or not, the following factors would be examined in light of the
circumstances:
1) The probability that the harm would take place
2) The seriousness of the harm
3) The social usefulness of the conduct that created the risk
4) The cost of any precautionary measures that could have reduced the level of risk
f. The Reasonable Person Test: A good shorthand to decide whether a person’s conduct
was reasonable or not is to use the “reasonable person” test. In using this test, we ask how
a person who is both reasonable and prudent would have acted in the same situation.
1) Children: Children must also act prudently and reasonably keeping in mind his or her
age and knowledge. But when a child engages in adult activities such as operating a
car, in many states, he or she is held to the same standard as an adult.
2) People with disabilities: If a person has a disability, he or she is expected to act as a
reasonable person with that disability.
3) Superior skill: A person with specialized knowledge, such as attorneys, doctors,
accountants, carpenters, and pilots are expected to behave in a way that reasonable
persons with the specialized knowledge would behave.
4) Mental deficiency: A person with a mental deficiency is expected to behave in the
same reasonable manner that would be expected from a person without the mental
disability.
5) Emergency situation: The fact that an emergency situation may exist does not
change the standard. A person is expected to act in a reasonable manner in light of the
emergency.
g. Legal requirement and the reasonable person test: In some instances, the law will
define the conduct that is expected.
1) Where the law defines the conduct that is expected, if the conduct causing the injury
fell short of what was required by law, most court would find that the conduct was
negligence per se.
Example: a law requires that employers issue hard hats to every worker at a
construction site. A hard hat was not issued to David, who was hired today to work at
the site, and to Sally, a city inspector, who came to check on the construction. Both
were hurt by falling debris. In a lawsuit, David would not have to prove that the
employer was negligent. The fact that the law requiring all employees to have hard
hats was violated would automatically show that the employer’s behavior was
negligent. Sally, since she was not an employee, would not be covered by the law.
She would have to prove that the act of not issuing a hard hat was unreasonable
behavior and hence negligent.
2) Complying with the law is not enough: If a law defines how a person should behave
in a given situation, that law sets only the minimum standard. Depending upon the
circumstances, just obeying the law may not be enough.
Example: Even though the posted speed limit is 65 mph, driving 65 mph in a severe
rainstorm that reduced visibility would not be reasonable. The reasonable person test
would require the driver to drive at a speed that would be safe under the
circumstances.
h. Duty to act: This is the first step in the analysis of a tort case. If there is no legal duty to
act, the analysis need proceed no further. Please remember that there is a difference
between a legal duty and moral duty to act.
1) Duty of a landowner: A property owner must use the property in a reasonable
manner. He or she cannot use the land in a way that might cause harm to others.
2) Degree of care of landowners: The degree of care the landowner must exercise
towards visitors on the land depends upon their classification with respect to the land.
a) Duty to trespassers: A trespasser is someone who enters another’s property
without permission. Generally, the landowner is not responsible for the safety of
trespassers, but many courts require that once a landowner is aware of the
presence of the trespasser (or knows that people enter his or her property on a
regular basis) there is a duty to make sure the property is safe.
b) Duty to licensees: A licensee is a member of the family, a guest, an uninvited
salesperson, etc. They are on the property with the consent of the owner. The
property owner has a duty to warn licensees of dangerous activities and conditions
that may not be apparent.
Example: Jason was invited to a large country estate for dinner. The dirt road,
which appeared to be solid, can become quite slippery when it is wet. During the
dinner, there is a short but violent downpour. The owner of the property has a
duty to warn Jason that the road may now be hazardous.
(1) A licensee may become a trespasser: A licensee can become a trespasser if
he or she exceeds the scope of the permission that allowed him or her to come
onto the land. A person who is permitted to come onto the property to sell
encyclopedia exceeds the scope of his or her permission if he or she wanders
onto parts of the property that is not required in order for the sale to be made.
c) Duty to invitees: An invitee is a member of the public who is invited onto the
land for the purpose for which the land is open to the public (park, beach,
swimming pool) or a person who is invited onto the land to conduct business
(shoppers at a store, repair person coming to make repairs, etc.). The landowner is
responsible for protecting the invitee against dangerous conditions they are
unlikely to spot. This responsibility extends not only for dangerous conditions that
he or she is aware of, but also conditions that he or she should have known about.
i. Causation in fact: This is a requirement that the person’s breach of the duty of
reasonable care was the actual cause of the injury or damage. If the injury or damage
would have been caused no matter how careful the person was, liability would not result
unless this was a special case to which the concept of strict liability applies.
1) Substantial factor test: If two people, acting independently, cause damage or harm
in a situation where the act of just one of the persons would have been enough to
cause the harm or damage, both parties are liable.
Example: Two hunters, shooting their shotguns at a deer, shoot an innocent
bystander. In this case, both were substantial cause of the injury and both are liable
even though the act of one person alone would have been enough.
j. Proximate cause: This is a social policy issue. Not every event that flows from a
negligent act results in liability. In general, courts will limit liability to those damaging
acts that are foreseeable.
1) Unforeseeable consequences: The reason the law does not want to impose liability
for injuries that are not foreseeable is because there is nothing that a reasonable
person could have done to prevent the damage. If the damage was unforeseeable, how
would a person have guarded against the consequences?
2) Superseding causes: A superseding cause is a force that comes into play after the
negligent act and which, either together with the negligent act or independently,
causes the damage or harm or aggravates the damage or harm.
Example: Adrian, driving negligently, hits Bill and injures his leg. Bill is taken to a
hospital where he is operated in a negligent manner and dies. Is Adrian liable? The solution depends upon how foreseeable the resulting harm to Bill was. Adrian’s act
caused Bill to be placed in the hospital where he required an operation. When patients
undergo an operation, does medical malpractice occur from time to time? The answer
is yes. Therefore Adrian—and the doctor—would be liable.
See the case of Petition of Kinsman Transit Co.
See the case of Palsgraf v. Long Island Railroad Co.
7. Defenses to negligence:
a. Contributory negligence: If the injured person’s own behavior contributed to the injury,
he or she cannot recover. This doctrine is recognized in only a few states.
1) Last clear chance: In order to ameliorate the harshness of the contributory
negligence rule, the last clear chance rule was developed. Even though the plaintiff’s
behavior fell below that of a reasonable person, if the defendant had the last
opportunity to prevent the harm or injury, the plaintiff would be able to sue.
b. Comparative negligence: If the plaintiff’s action contributed to his or her harm, under
this theory, the degree of fault on the part of the plaintiff and the defendant are measured.
Example: John was driving negligently when he hit and injured Stewart who was
crossing the street against a red light. Stewart suffers $100,000 of injuries. If it is
determined at the trial that Stewart was 25% responsible for the injury and John was 75%
responsible, Stewart would recover $75,000.
1) Limit on comparative negligence: In most states, if the plaintiff’s behavior
contributed 50% or more to the injury, he or she would not be able to recover. If in
the above example, Stewart was 60% responsible for the injury and John was 40%
responsible, Stewart would not be able to recover anything in most states. In some
states, he could recover $40,000.
c. Assumption of risk: This is a case where a person knowingly and voluntarily assumes
the risk of injury.
Example: A professional prize fighter assumes the risks that he may suffer serious injury
when he enters the ring to fight.
8. Strict liability: In a limited number of cases, the law will hold a defendant responsible for
injuries to others even though the person did everything possible to prevent the injuries from
taking place. This is an example of strict liability. It is often called absolute liability or
liability without fault. The rationale is that the activities engaged in by the defendant are such
that society will hold the defendant liable for all injuries proximately caused by the activities.
Strict liability applies in the following situations:
a. Abnormally dangerous activities: Strict liability is imposed in cases where a person
engages in activities that are abnormally dangerous. Abnormally dangerous activities are
activities that are unusual, involve a high risk of serious harm, and the harm cannot be
eliminated by exercise of reasonable care.
Examples:
1) Storing explosives and flammable liquids in large quantities
2) Blasting and pile driving activities
3) Emitting natural gas in a populated area
On the other hand, courts have not found strict liability in cases where the land is used in
a manner consistent with the surrounding area. Examples include:
1) Drilling for oil in an established oil field
2) Transmitting natural gas through pipes
b) Keeping of wild animals: People who keep wild animals are responsible for harm and
injuries caused by the animals.
1) Trespassing animals: When animals trespass upon someone else’s property and
cause damage, the owner is subject to strict liability. There are three exceptions:
(a) Dogs and cats: Owners of dogs and cats are liable for damages caused by their
trespassing pets only if negligence can be shown.
(b) Keepers of animals that stray from highways where they are being
transported are not liable unless negligence is shown.
(c) Farm animals: In certain parts of the country, owners of freely grazing animals
are not liable for damage to a neighboring property unless negligence is shown.
2) Non-trespassing animals: Owners of wild animals are strictly liable for harm
caused by such animals. Examples of wild animals are: bears, lions, elephants,
monkeys, deer, raccoons, etc.
(a) Domestic animals defined: Domesticated animals are animals that are
traditionally devoted to the service of mankind and are considered to be safe.
Examples are dogs, cats, horses, cattle, etc.
Owners of domestic animals are liable for harm and injury caused by these
animals if they knew or should have known of the animal’s dangerous propensity.
The harm must result from the animal’s dangerous propensity.
Example: We expect that a dog will bite another dog or a person, but strict
liability will not result from that. A propensity to bite among dogs is not regarded
as a dangerous propensity. On the other hand if the owner of a 150-pound
sheepdog knows that the dog has a tendency to jump playfully on others, an injury
caused by the dog jumping on another person would be a case where strict
liability would apply.
c) Products liability: Manufacturers of products that result in injury to the users and others
may be strictly liable.
d) Defenses to strict liability: Because of the nature of strict liability, there are very few
defenses. In some cases of products liability, a limited comparative negligence defense
may be permitted. Voluntary assumption of risk may also apply in certain cases.
Example: A person knowingly and voluntarily parks his car in an area where explosives
are being discharged. If his car is damaged by flying debris, he may be precluded from
filing suit.
No comments:
Post a Comment