Dynamic business law 4e kubasek 4e CH09

Chapter 9
Negligence and Strict Liability

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Overview

• LO9-1: What are the elements of negligence?
• LO9-2: What are the doctrines that help a plaintiff establish a case of negligence?
• LO9-3: What are the defenses to a claim of negligence?
• LO9-4: What are the elements of strict liability?

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Chapter 9 Hypothetical Case 1
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As this chapter indicates, strict liability is liability without fault. One example of strict liability is workers'
compensation, a state-administered system through which workers are compensated for work-related
injuries. Generally, to prove a workers' compensation claim, a worker need only demonstrate that he or she
sustained a work-related injury by accident arising out of the course and scope of employment. Negligence
of the employer or employee is essentially irrelevant.

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Should workers' compensation be based on the theory of strict liability, or should it instead be based on the
relative fault of the employer and employee? Explain your response.

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Chapter 9 Hypothetical Case 2
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William "Bill" Lane and Robert "Bo" Gutierrez are owners of Bill-Bo Bowling Balls, Inc. a small bowling ball
manufacturing company located in Topeka, Kansas. One day, while walking on the public sidewalk
immediately adjacent to the Bill-Bo Bowling Balls building, a bowling ball fell on Richard Weber, causing
severe (but fortunately, non-fatal) injuries to Weber. A sole witness, Anne Marie Norton, saw the bowling
ball fall from a second-story window of the building and strike Weber, but she was not able to identify the
perpetrator.

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Weber's attorney, Samuel Pettibone ("S.P.") Ayre, has filed a lawsuit listing Lane, Gutierrez, and Bill-Bo
Bowling Balls, Inc. as co-defendants in the case. Will Weber and his attorney, Ayre, succeed in the litigation?

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Negligence
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Definition:

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Behavior that creates an unreasonable risk of harm to others; the failure to exercise reasonable care to protect
another's person or property

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Elements of negligence

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Duty: The standard of care a reasonable person owes another (reasonable person standard)
Breach of duty: Failure to live up to the standard of care
Causation: Actual cause and proximate cause
Damages: A compensable loss suffered by plaintiff

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Elements of Causation

• Actual cause (cause in fact): Defendant's breach of duty resulted directly
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in plaintiff's injury; "but for" defendant's breach of duty, plaintiff would
not have been injured
Proximate cause (legal cause): Extent to which, as a matter of policy, a
defendant may be held liable for the consequences of his actions; in most
states determined by if plaintiff and plaintiff's damages were reasonably
foreseeable when defendant breached his duty to plaintiff

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Types of Damages

• Compensatory damages: Damages intended to reimburse plaintiff for his/her losses
(consistent with purpose of tort law)

• Punitive damages (exemplary damages): Imposed to punish defendant and deter
others from committing similar acts; usually reserved for cases of gross negligence,
involving defendant's extreme, reckless disregard for property/life of others

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Plaintiff's Doctrines
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Res ipsa loquitur: Permits judge/jury to infer that defendant's negligence caused plaintiff's harm (in cases
where no direct evidence of defendant's lack of due care)
A res ipsa case requires the following proof:

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•
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Event was of a kind that ordinarily does not occur in the absence of negligence
Other responsible causes, including the conduct of third parties and plaintiff, have been effectively ruled out
Indicated negligence was within scope of defendant's duty to plaintiff

Negligence per se: Permits plaintiff to prove negligence by offering evidence of defendant's violation of
statute enacted to prevent certain type of harm

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Defenses to Negligence
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Contributory negligence: Allows defendant to avoid liability by showing that plaintiff's own
conduct contributed to plaintiff's harm

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Comparative negligence: Allows apportionment of liability between plaintiff and defendant,
according to degree of responsibility each bears for plaintiff's harm

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Assumption of the risk: Allows defendant to avoid liability by showing that plaintiff willingly
engaged in an activity where harm foreseeable

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Special defenses to negligence include Good Samaritan statutes and establishing a superseding
cause.

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Strict Liability Doctrine

• Imposes liability without fault (i.e., no evidence of defendant's intent to
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harm or negligence required)
Persons who engage in activities so inherently dangerous that no amount
of due care can make them safe are strictly liable, regardless of degree of
care they used when undertaking the activity

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Chapter 9 Hypothetical Case 3
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Don Streater is driving his new Mustang on a two-lane road, Highway 101, on the outskirts of town. The speed limit on Highway 101 is 45 miles per hour.
Albert Hunt is also driving on Highway 101, heading in the opposite direction from Streater. Hunt looks to his passenger seat to find a map, when he veers
across the center line into Streater's direction of travel. The two cars collide; luckily, neither man is killed, but Streater is seriously injured. In financial terms,
his medical injuries, medical expenses, and pain and suffering are estimated at approximately $100,000.

Streater sues Hunt, alleging negligence on the part of the defendant. The evidence at trial establishes that defendant Hunt was traveling at 50 miles per hour,
had consumed three beers at lunch approximately 30 minutes before the accident occurred, has 20/50 uncorrected vision, and was not wearing his
prescription eyeglasses at the time of the accident. Evidence at trial also establishes that Streater was traveling 50 miles per hour at the time of the accident,
and was not wearing his seat belt.

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Should the jury return a verdict in favor of Streater in the amount of $100,000 (representing his medical injuries, medical expenses, and pain and suffering),

plus the associated costs of litigation? Does it matter whether the state in which the accident occurred recognizes the contributory or comparative negligence
doctrine? In not wearing his seat belt, did Streater assume the risk?

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Chapter 9 Hypothetical Case 4
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Hollis McMurtry had been looking forward to his birthday celebration all month. A new nightclub,
TwentyfiveEleven, was scheduled to open just a day before, and his friends had planned his birthday
bash there.
After a long evening of partying, and after McMurtry had consumed many drinks, he slipped on the
club's very slick marble flooring in the bathroom and suffered a concussion and a deep cut to the face
on a sharp piece of door hardware. The wound left a large scar on his face, which his doctors told him
would require extensive plastic surgery to repair. Fearing that McMurtry would sue, and that others
may suffer similar injuries, the club's owners quickly replaced the bathroom flooring and removed the
hardware that caused McMurtry's injury.

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McMurtry's attorney, Jericka Dorland, advised him that she will invoke the doctrine of res ipsa loquitor
in a lawsuit against the club. Why did Dorland choose res ipsa loquitor for this case? Is the club
completely liable for McMurtry's injuries?

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