Class 8

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Negligence

To succeed in a negligence action' the plaintiff must prove:

That the defendant owed a duty of car to the plaintiff

That the defendant breached that duty of care

that the defendant's breach caused the plaintiff's injuries

the defendant's act was the proximate cause (legal cause) of the plaintiff's injuries. (the defendant is liable only for the foreseeable consequences of his or her negligent act)

Negligence is NOT an intentional tort

The Duty of Care and its breach

Duty of Care- refers to the obligation people owe to each other- that is, the duty not to cause any unreasonable harm or risk (Reasonable Person standard)

Reasonable person Standard

In determining whether a duty of car has been breached

it is society's judgement of how an ordinary person should act. (person would be careful, conscientious, prudent, even tempered, and honest)

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Breach of Duty of Care

if a court finds that defendant owed a duty of care to the plaintiff, it must determine whether that duty of breached

Breach of duty = failure to exercise car (not acting like a reasonable person)

The Injury Requirement and Damages

To recover damages (receive compensation) the plaintiff in a negligence lawsuit must prove that she or he suffered a legally recognizable injury. In other words, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest

Compensatory damages are the norm

Punitive damages are rare

Causation

A defendant's negligent act must be the actual cause of the plaintiff's injuries.

But For test: "But for" conduct, would the accident have happened?

if the defendant's act caused the plaintiff's injuries, there is a causation in fact

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Strict liability

is where liability for injury is imposed for reasons other than fault

Abnormally dangerous activities

have three characteristics

the activity involves potential harm, or serious nature, to persons or property

the activity involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable care

The activity is not commonly performed in the community or area

Liability derives from the creation of extraordinary risk

Other applications of strict liability

wild animals- persons who keep wild animals are strictly liable for any harm inflicted by the animals

strict liability in the area of product liability is a matter of social policy

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Product defects

manufacturing defects

warning defect

design defect

Manufacturing defect

a defect in manufacturing accors when the manufacturer fails to

properly assemble the product

properly test the product

adequately test quality of a product

design defect

relates to the product's actual design and to claims that it created an unreasonable risk to the user

warning defect

inadequate instructions or warnings when foreseeable risks of harm

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defenses to product liability

assumption of risk

abnormal misuse of product

comparative negligence (fault)

commonly known dangers

supervening event

assumption of risk

to establish an Assumption of Risk Defense in a product liability action the defendant must show that

the plaintiff knew and appreciated the risk created by the product and defect

the plaintiff voluntarily assumed the risk even though it was unreasonable to do so

product misuse

not using product in way it was designed

similar to assumption of risk

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comparative negligence (fault)

even if plaintiff misused the products, she or he may be able to recover at least some of the damages for injuries caused by the defendant's defective products

commonly known dangers

dangers associated with certain products are so commonly known that manufacturers need not warn users of those dangers