Torts: Negligence and Strict Liability

1. Torts: Negligence and Strict Liability When a wrong was not intended but creates liability nonetheless OBE 118, Section 3, Fall 2004 Professor McKinsey

2. Elements of Negligence Duty of care Breach of the duty of care Injury (Actual cause) Proximate cause (Damages)

3. Duty of care • Act as carefully as The Reasonable Person would under similar circumstances • Was the harm that resulted foreseeable?

4. Proximate Cause Is it fair to say the act was the cause? “Fairness” Factors

5. Summary of Basic Negligence • Duty of care • Breach of the duty of care • Injury (Actual cause) • Proximate cause • (Damages)

6. Special Effects on Liability • Intervening Causes A separate event between defendants act and plaintiff’s injury • Shared Responsibility

7. Special Forms of Negligence • Res ipsa loquitor The thing speaks for itself – • Negligence per se An act that is “automatically” negligence Some • Premises Liability

8. Premises Liability • Duty of care is determined with an additional factor: the injured person’s status on the premises: • Trespasser to land • Licensee (Guests of homeowners) • Invitees (Customers at business premises)

9. Premises Negligence Trespassers Minimal duty Must warn of human-made risks not likely to discover No traps or spring guns Young children are exception Licensee • Must warn of known risks or fix them Invitee High duty of care • Must inspect premises

10. Defenses to Negligence • Assumed the risk • Comparative negligence

11. Strict Liability vs. Other Types of Torts • Intentional Torts Did Actor Intend Act or the Harm that resulted from the act? • Negligence Would a Reasonable Person Do the act that caused the harm? • Strict Liability Did an injury occur?

12. Strict Liability • No need to prove intent or negligence • Often no concern about fault at all • Three Basic Examples • Ultra Hazardous Activities • Worker’s Compensation • Product Liability

13. Ultra-hazardous Activities • Harboring wild animals • Mining • Explosives

14. PL based on Strict Liability (Based on the Restatement (2nd) of Torts) 1. D sold product in defective condition 2. D normally in business of selling product 3. Product unreasonably dangerous* 4. P suffers physical harm through use of product 5. Defective condition is proximate cause 6. No substantial changes to product since sold

15. What is a Defective Product? 3 General Ways a Product can be Defective 1) Actual defect (flaw in manufacturing). Product not built as intended. 2) Design defect. Product built as designed, design had defect. 3) Failure to warn. A different approach usually used when product had dangers inherent to purpose or type of product.