Tortfeasor does not intend the consequences of the act, but his conduct creates a risk of foreseable injury.
What must plaintiff show in negligence cases
- defendant owed plaintiff a duty of care
- defendant breached that duty
- plaintiff suffered legal injury
- defendant's breach caused the injury
Negligence Per Se
It violated the law and hence, is illegal
Duty of Care
reasonable person standard is used (degree of care expected of a reasonable person in similar circumstances)
Reasonable Person Standard
Things which Affect reasonable person standard:
- Physical Disability
- Superior Skill or Knowledge
Things which do NOT Affect reasonable person standard:
- Mental Deficiency
*Violation of Statute may be negligence per se
When a professional comits negligence. Pro is held to standard of care of reasonable person in that field.
Extreme cases of negligence.
Duty to Act
People have a legal onligation to avoid doing harm or putting others at unreasonable risk of harm.
*Generally person has no duty to aid another in peril unless: (1) relationship between parties creates need (e.g. child); (2) the person intentionally or negligently place the other party in a position of potential harm.
Voluntarily Helping Someone
Person helping can be liable if if his/her negligence increased the risk of harm (exception: Good Samaritan Statues)
Res Isa Loquito and dram shop acts
Duties of Possessors of Land
1.) Duty to Tresspassers
2.) Duty to Licensees
3.) Duty to Invitees
Duty to Tresspassers
May not inflict intentional injury on tresspassers
Duty to Licensees
Must warn licensee of known dangerous conditions that licensee is unlikely to discover
Duty to Invitees
If possessor should reasonably knowof a hazard, then he is under duty to protect invitees from dangers they are unlikely to discover, whether or not the possessor is aware of the danger.
Causation in Fact
Conduct was actual cause of, or a substantial factor in causing the injury (did injury occur due to defendant's act or would it have occured anyway)
Test for Causation in Fact
"But for" Rule - A person's conduct is a cause of an event if the event would not have occured "but for" the person's negligence.
Defendant is not liable for unforseable consequences. Even if defendants negligence caused plaintiff harm, defendant not liable unless defendant could have have reasonably forseen injuring the plaintiff or a class of persons which the plaintiff is a member.
Harm to a legally protected interest (plaintiff must prove that defendant's negligent conduct proximately casued an injury to a legally protected interest.
Designed to reimburse plaintiff for actual losses.
Designed to punish the tortfeasor and deter others from wrongdoing.
If plaintiff's negligence was in ANY WAY contributed to his injury, he may not recover anything from defendant (Not seen much anymore)
Comparative Negligence (more common)
Percent of which both plaintiff and defendent are liable for incident are taken into consideration.
- Pure: Plaintiff is paid damages for whatever percentage defendant is found liable (e.g. plaintiff 30% liable, defendant 70% liable, plaintiff awarded 70% damages).
- Modified: If plaintiff is 50% < liable, no award for damages from defendant (more prevalent)
Assumption of Risk
In most states, the plaintiff must have expressly consented to encountering a known danger.
When person is held liable for damages he has caused even when he has not acted intentionally or negligently. (based on nature of activity)
Activities giving rise to Strict Liability
- Abnormally dangerous activities - invlove high degree of risk of serious harm and are not a matter of common usage.
- Keeping of animals - Owners must protect against harm to other people and their property (trespassing vs non-trespassing animals)
- Products Liability
Keepers generally liable
- Wild Animals - Owners strictly liable
- Domestic Animals - "one-bite" rule. If you know or should know the animal has a dangerous propensity, you're liable. (e.g. If dog has never bitten , generally not liable first time it bites, but if dog has history of biting, you're liable)
Merchants are liable without fault based on public policy
*Consumers must be protected from unsafe products
* manufacturers, sellers, and distributors can bear the cost of injuries better than injured consumers.
Contributory Negligence (NC)
Not a defense to strict liability
Most states apply Contributory Negligence to strict liability, particularly in products liability cases.
Assumption of Risk
A defense to strict liability, but the assumption must be knowing and truly voluntary.
3 Things that scare business and propogate Tort Reform