Chapter 8: Negligence and strict liability

1. Negligence involves conduct that creates an unreasonable risk of harm.

a. Basis of liability for negligence is the failure to exercise reasonable care,

under given circumstances, for the safety of another person or his property, which
failure causes injury to such person or damage to his property.

2. Strict liability is not based upon the negligence or intent of the defendant but
rather upon the nature of the activity.

3. Negligence : A person acts negligently if the person does not exercise

reasonable care under all circumstances.

a. A person is under duty to all others at all times to exercise reasonable care
for the safety of the others’ person and property.

b. An action for negligence consists of 5 elements:

i. Duty of Care

ii. Breach of Duty

iii. Factual cause

iv. Harm

v. Scope of liability

4. Breach of Duty of Care

a. In determining whether a given risk of harm was unreasonable, the law considers:

i. The foreseeable probability that the person’s conduct will result in harm

ii. The foreseeable gravity or severity of any harm that may follow

iii. The burden of taking precautions to eliminate or reduce the risk of harm.

b. Standard of conduct, usually determine by a cost-benefit or risk-benefit

analysis.
 c. Reasonable Person is a fictitious individual who is always careful and prudent
and never negligent.

i. The reasonable person standard is external and objective.

ii. The standard of conduct to which a child must conform to avoid being negligent
is that of a reasonably careful person of the same age, intelligence, and experience
under all the circumstances.

iii. The law applies an invidualized test because children do not possess the
judgment, intelligence, knowledge, and experience of adults.

iv. Physical disability

v. Mental disability- A person’s mental or emotional ability is not considered in

determining whether conduct is negligent unless the person is a child.

vi. Superior skill or knowledge- person who are qualified and who practice a
profession or trade required to exercise that care and skill. (Physicians etc)

vii. Emergencies

viii. Reasonable person standard of conduct may be established by legislation or

administrative regulation.

 Courts may adopt the requirements of the statute as the standard of

conduct if the statute is designed to protect against the type of accident the
conduct causes and the victim is within the class of persons the statute designed
to protect.

 If the statute is found to be applicable, the majority of the courts hold that
an unexcused violation is negligence per se- violation conclusively constitutes
negligent conduct.

 Legislative or administrative rules normally establish minimum standards.

ix. Duty to Act- In special circumstances, a person who has not created risk of
harm to others ordinarily has no duty of care to another.
  Special relations between the parties may impose a duty of reasonable care upon
the defendant to aid the scope of the relationship.

 A person who voluntarily begins a rescue by taking charge of another who is

imperiled and unable to protect himself incurs a duty to exercise reasonable care under
the circumstances.

 A person who discontinues aid or protection is under a duty of reasonable care

not to leave the other in a worse position.

 Good Samaritan statutes encourage voluntary emergency care.

x. Duty of Possessors of land

 Possessor is required to exercise reasonable care for trespassers safety

in carrying out on her activities and to warn trespassers of potentially highly
dangerous conditions that the trespassers are not likely to discover.

 A licensee is a person who is privileged to enter or remain upon land only

by virtue of the lawful possessors consent.

 Possessor must warn licensee of dangerous activities and conditions of

which the possessor has knowledge or has reason to know and which the licensee does
not and is not likely to discover.

 An invitee is either public invitee or business visitor; possessor is under

duty to exercise reasonable care to protect invitee against dangerous
conditions they are unlikely to discover.

5. Res Ipsa Loquitur: The thing speaks for itself

a. A rule of circumstantial evidence has developed that permits the jury to

infer both negligent conduct and causation from the mere occurrence of certain types of
events.

6. Factual Cause- Liability for the negligent conduct requires that the conduct in
fact caused harm to the plaintiff.
 a. A widely applied test for causation in fact is the but-for test: A person’s conduct
is a cause of an event if the event would not have occurred but for the person’s
negligent conduct.

b. The but-for test is not satisfied when there are 2 or more causes, each of which is
sufficient to bring about the harm in question and each of which is active at the time the
harm occurs.

7. Scope of Liability

a. Superseding cause

8. The court determines the extent of protection for a particular interest as a matter
of law on the basis of social policy and expediency.

9. Defenses to Negligence

a. Contributory Negligence- Conduct on the part of the plaintiff falls below the
standard to which he should conform for his own protection, and which he is legally
contributing cause co-operating with the negligence of the defendant in bringing about
the plaintiff’s harm

i. A few states have not adopted (Alabama, Maryland, North Carolina, Virginia, and
D.C)

ii. Last clear chance- Final opportunity to avoid injury

b. Comparative Negligence- Damages are divided between the parties in

proportion to their degree of negligence

c. Assumption of Risk- A plaintiff who has voluntarily and knowingly

assumed the risk of harm arising from the negligent or reckless conduct of the
defendant cannot recover such harm.

i. Express assumption of risk (plaintiff expressly agrees to assume the risk of

harm)

ii. Implied assumption of risk (plaintiff voluntarily proceeds to encounter a

known danger)
 10. Strict liability (absolute liability/liability without fault)- people may be held liable
for injuries even though they have not acted intentionally or negligently.

a. The doctrine of strict liability is predicated upon the nature of the activity
in which defendant is engaging.

11. Activities giving rise to strict liability:

a. Abnormally Dangerous Activities

i. The activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors.

ii. The activity is not one of the common usages.

b. Keeping of Animals

i. Trespassing animals

 Keepers of animals are not strictly liable if those animals incidentally stray upon
land immediately adjacent to a highway on which they are being lawfully driven.

 Keepers of farm animals are not strictly liable for harm caused by their
trespassing animals that are allowed to graze freely.

ii. Nontrepassing animals

 Owners and possessors of wild animals are subject to strict liability.

 Wild animals and domestic animals.

12. Defense to strict liability

a. Contributory negligence

b. Comparative Negligence

c. Assumption of Risk

i. Must be voluntarily.