978-0077733711 Chapter 7 Lecture Note

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Chapter 07 – Negligence and Strict Liability

CHAPTER 07

NEGLIGENCE AND STRICT LIABILITY

I. OBJECTIVES:

This chapter is designed to acquaint students with the other two bases of tort liability: negligence

and strict liability. After reading the chapter and attending class, a student should:

A. Be able to identify the basic elements of a negligence action.

B. Be able to apply negligence principles to various fact patterns, in order to ascertain whether

they justify the imposition of liability.

C. Understand how strict liability differs from negligence.

See also the Learning Objectives that appear near the beginning of the chapter.

II. ANSWERS TO INTRODUCTORY PROBLEM:

A. In Cabral v. Ralphs Grocery Co., 248 P.3d 1170 (Cal. Sup. Ct. 2011), the Supreme Court

of California held that the California Court of Appeal erred in holding that neither Horn

nor his employer (Ralphs) owed a duty of reasonable care to the decedent. The key

consideration in determining whether a duty of reasonable care exists is one of

foreseeability. See the further discussion in the text.

B. Breach of duty and causation of injury would also have to be proven. In addition, see the

discussion in II.C (immediately below).

C. Assuming Horn was negligent, he would be liable. But Ralphs could also be liable on

either (or both) of two bases. First, Ralphs could be vicariously liable on respondeat

superior grounds. Under that doctrine, an employer (here, Ralphs) is liable for a tort

committed by its employee (here, Horn) if the tort occurred within the scope of

employment. Horn was clearly acting within the scope of employment at the time of his

negligence (if any). Ralphs also could face liability for its own negligence, if the plaintiff

could establish that Ralphs failed to use reasonable care (such as by failing to have

adequate policies making it clear that its drivers were not to stop alongside the roadway).

If both Horn and Ralphs could be held liable, the plaintiff could sue either or both.

D. Because of the comparative negligence or comparative fault approach adopted in nearly

all states, the decedent’s own negligence would not necessarily bar the plaintiff from

recovery. Here, the jury had concluded that the decedent’s own negligence accounted for

90 percent of the causation and that the defendants’ negligence supplied the other 10

percent. Controlling California law set up a pure comparative negligence scheme of the

sort discussed later in the chapter. This that Cabral could still win the case if she proved

all elements of her claim, but that the damages would be reduced by 90 percent. Under a

mixed comparative negligence scheme of the sort described later in the chapter (and

applicable in many states), the fact that the decedent’s degree of responsibility exceeded

that of the defendants would have barred the plaintiff from winning the case.

E. Yes, presumably, given the foreseeability of harm to others if the company were to put an

unsafe truck driver on the road. A strong argument could be made that an ethical

obligation along those lines would seem to be present as well. (See Chapter 4’s

discussion of ethical theories.)

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Chapter 07 – Negligence and Strict Liability

III. SUGGESTIONS FOR LECTURE PREPARATION:

A. Negligence

1. Outline the elements of a negligence claim in order to provide a basic roadmap of what

the plaintiff must prove. Note that the defendant may attempt to raise defenses (the

details of which will be discussed later).

2. Duty and Breach of Duty:

a. With regard to the reasonable care/reasonable person standard:

i. Reasonable care–the duty to act as the hypothetical reasonable person would–is

the usual duty for purposes of negligence law. This assumes, however, that a

duty exists in the first place. Note the role of foreseeability in determining

whether a duty exists. Stress the modern tendency of courts to take a broad view

of the group of persons who may be foreseeable “victims” of defendants’

conduct. This means that a duty will be held to have existed in the vast majority

of negligence cases. The focus must then turn to whether the duty was breached.

ii. One way to view the breach of duty element is that it contemplates the

defendant’s having failed to live up to the behavioral standard set by the

reasonable person. In this connection, observe that negligence is behavior, not

some mental state.

iii. So how would the reasonable person behave? This depends on all of the relevant

facts and circumstances and on the various factors discussed in the text

(foreseeability, magnitude, etc.). Stress that discretionary, factor-based balancing

occurs here and that the weight of each factor will vary with the facts. Ordinarily,

however, foreseeability of harm is the most important of the bunch. This means

that foreseeability is important not only to the determination of whether a duty

was owed, but also to the determination of whether the duty was breached.

Examples: Problems #1, #4 (formerly a text case), #5 (formerly a text case), #8,

and #11; Dick’s Sporting Goods (a text case discussed later); Kroger Co. v.

Plonski (formerly a text case; discussed below; now Problem #7); Currie (a text

case discussed later); and Shafer (a text case discussed below).

Shafer v. TNT Well Service, Inc. (p. 228): The Supreme Court of Wyoming holds

that the district court erred in granting summary judgment in favor of the

defendant (TNT) in a case in which the plaintiffs sustained personal injuries and

property damage as a result of a motor vehicle accident caused by the negligence

of Clyde, whose employment with TNT supposedly had been terminated just

prior to the accident. Clyde was driving a TNT vehicle at the time of the accident.

A post-accident blood test revealed the presence of controlled substances in his

blood. In reversing and remanding, the court held that the plaintiffs could

proceed with their negligent supervision and negligent entrustment theories.

Points for Discussion: Ask the students what the plaintiffs’ claims were (initially

respondeat superior, negligent supervision, and negligent entrustment, but only

the latter two by the time of the appeal because the plaintiffs gave up on the

respondeat superior claim). Ask why the district court concluded that respondeat

superior didn’t apply. (If his employment had been terminated prior to the

accident, he couldn’t have been acting in the scope of employment when the

accident occurred.) Note, however, that the Supreme Court said there were

genuine issues of material fact as to whether Clyde’s employment had been

terminated prior to the accident. Perhaps, then, the plaintiffs shouldn’t have

abandoned their respondeat superior claim? Importantly, however, the court

indicates that the questions as to whether Clyde’s employment had been

terminated also relate to the direct liability claim for negligent supervision. Ask

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Chapter 07 – Negligence and Strict Liability

how a claim for negligent supervision of an employee (or negligent hiring or

negligent retention) differs from respondeat superior. (Respondeat superior can

cause the employer to be liable for the employee’s tort, whereas a negligent

hiring, negligent retention, or negligent supervision is the employer’s own tort.)

Explain the difference between direct liability and vicarious (or imputed)

liability. Might there have been a failure to use reasonable care on TNT’s part in

supervising Clyde? The court indicates that there may have been, and again

points to the relevance of disputed factual questions that need to be resolved on

remand. Ask about the role of foreseeability in a determination of whether TNT

owed a duty of reasonable care in supervising Clyde and whether TNT breached

that duty. (Note the drug-induced state Clyde was in at the time of the accident,

his prior DUIs, and the failure of TNT to give Clyde a pre-employment drug test

despite some witnesses’ statements that drug tests supposedly were given

regularly to newly hired employees.) Ask about the role of foreseeability in

regard to the duty and breach questions associated with the negligent entrustment

claim. (Some of the same things noted in the earlier parenthetical are relevant

here as well.) Note the essence of a negligent entrustment claim, and stress that

it doesn’t require an employment relationship between the entrusting party and

the entrusted party (even though such a relationship existed here as of the time

TNT provided a company vehicle to Clyde). Note, too, that the fact of TNT’s

ownership of the vehicle doesn’t by itself make TNT liable (contrary to what

many students might believe). Finally, this case provides a good basis for

discussing the summary judgment standard and the effect of an appellate court’s

reversal of a grant of summary judgment.

b. Note the special duties (discussed at p. 235) for professionals, common carriers, and,

in appropriate instances, innkeepers. The mention of landlords’ possible liability

stemming from foreseeable criminal acts of third parties relates to the immediately

following material on duties of owners and possessors of property, as well as to the

causation discussion that appears later in the chapter.

c. Note the traditional duties owed by owners and possessors of real property to persons

on that property. In emphasizing that these rules depend heavily upon the status of

the person who is on the property, distinguish among the traditional classifications of

invitee, licensee, and trespasser. Note the trend among some courts to merge the

invitee and licensee classifications.

d. Note that cases dealing with duties owed to persons on property are often referred to

as “premises liability” cases. Traditionally, premises liability cases focused on

physical conditions at the relevant premises–conditions that could harm persons who

are on the premises. Examples: Problem #3 (the Hresil case–one that students

usually like); Dick’s Sporting Goods (a text case discussed later). In recent years,

premises liability has been extended so that negligence cases of that nature may be

based, in appropriate instances, on the behavior of other persons on the premises.

Sometimes an owner or possessor of property may face liability to invitees who were

injured by the foreseeable criminal acts of third parties who were on the premises.

See, for instance, Currie, which is discussed below; Kroger v. Plonski (now Problem

#7 but formerly a text case; see later discussion); and Lord v. D&J Enterprises (a text

case discussed later). See also Problem #4 and the Ethics in Action box at. p. 234.

Currie v. Chevron U.S.A., Inc. (p. 231): A gas station attendant allowed gas to flow to

the pump, though a physical altercation was taking place next to it. The assailant

pumped gas onto the victim and lit her on fire. The jury found the attendant had

breached the duty of care by allowing the gas to flow to the pump when she might

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Chapter 07 – Negligence and Strict Liability

have anticipated that gas would be used as a weapon. The 11th Circuit upheld the

denial of the defendants’ motion for judgment as a matter of law, as the evidence

offered room for a reasonable difference of opinion on what the attendant should

have expected.

Points for Discussion: The underlying killing in this case was intentional rather than

merely negligent. Should Shukla really be held to account when Muhammad

deliberately committed a heinous act? Should Chevron? Hitting the button after

hearing the beep likely borders on a Pavlovian response, and under normal

circumstances, we would understand if Shukla hadn’t given much thought to it. (But

were these normal circumstances?) Consider as well that Shukla probably didn’t

violate any part of her training. Her training regarding “the button” probably

addressed payment issues rather than these out-of-the-ordinary safety issues. Did

Chevron have a duty (as part of a duty of reasonable care) to train employees about

how to handle situations of the sort present in this case? (Probably not, prior to this

strange incident.) What about going forward, after this case? (Maybe so, given that

Chevron is on notice that this kind of thing can happen. And as a practical matter,

Chevron probably would want to get the word out to employees about what happened

here even though it was an unusual set of facts, because Chevron wouldn’t want to be

subjected to liability again if a comparable out-of-the-ordinary situation again arose.)

Note that Chevron’s liability in this case is really on respondeat superior grounds

(because Shukla’s negligence occurred within the scope of her employment), not

because of any ruling that Chevron itself was negligent. Finally, note that

Muhammad of course would be liable (for battery). But she’s almost certainly

judgment-proof. That probable fact surely helps to explain why Currie seeks to have

other possible defendants held liable.

Dick’s Sporting Goods, Inc. v. Webb (p. 235): The Supreme Court of Kentucky holds

(as had the Kentucky Court of Appeals) that the trial court erred in granting summary

judgment in favor of the defendant (Dick’s) in Webb’s case, which pertained to the

injuries she suffered when, on a rainy day, she slipped on the wet tile floor of the

defendant’s floor shortly after entering the premises. The Supreme Court concludes

that Webb’s case should be resolved by a jury.

Points for Discussion: Ask what duty the store owner normally has to customers with

regard to physical conditions on the premises. (The duty to use reasonable care to

keep the premises reasonably safe.) Why did the trial court think Dick’s was entitled

to summary judgment? (According to that court, the wet floor was an open-and-

obvious condition, and that an open-and-obvious condition effectively makes the

usual duty of reasonable care inapplicable—or at least not violated under the

circumstances.) Ask what the intermediate appellate court concluded regarding the

open-and-obvious condition issue. (That the duty of reasonable care applies even if

the condition was open and obvious.) Even though the Supreme Court concluded

that the intermediate appellate court was right in setting aside the trial’s court’s grant

of summary judgment to the defendant, how was the Supreme Court’s rationale

different from that of the intermediate appellate court? (The Supreme Court didn’t

think that the wet tile on which Webb slipped was an open-and-obvious condition

anyway, so there was no reason to rule on the effect of an open and obvious condition

and no reason to think that the usual duty of reasonable care didn’t at least potentially

apply to the case.) Note the role of foreseeability of harm in cases such as this. Note

that given the posture of the case, the Supreme Court didn’t hold that Webb

ultimately will win the case. Rather, it ruled that jury questions were present in

regard to disputed maters of fact and whether Dick’s breached its duty of reasonable

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Chapter 07 – Negligence and Strict Liability

care. Finally, note that this case is a fairly traditional premises liability case in which

the plaintiff claims that the defendant failed to take adequate measures to eliminate a

supposedly dangerous physical condition on the premises. As cases such as Lord (a

text case) to be discussed shortly) and Kroger v. Plonski (formerly a text case;

discussed below) indicate, the duty of reasonable care owed by owners or possessors

of property can sometimes extend to taking reasonable steps to lessen the danger that

a person legitimately on the premises could be harmed by a third-party wrongdoer).

Kroger v. Plonski (formerly a text case; now Problem #7): The Supreme Court of

Indiana holds that the trial court correctly denied Kroger’s motion for summary

judgment in a case in which the plaintiff (Plonski) claims that Kroger negligently

failed to provide adequate security in the parking lot area outside a Kroger store.

Points for Discussion: Ask a student to summarize the basic facts. What is Kroger’s

argument for why it should receive summary judgment? (No duty; alternatively, even

if duty, no breach). Why does the court conclude that Kroger owed Plonski a duty?

(Foreseeability of harm to invitee if adequate security measures not taken.) Note that

criminal acts of third parties—what we have here—often used to be considered

unforeseeable as a matter of law, but that’s not necessarily true now. Such acts may

be foreseeable. Ask the students what evidence there was regarding foreseeability

here. Who should decide whether there was a breach of the duty of reasonable care?

(A jury, according to the court.) What evidence in this case might justify a jury in

concluding that there was a failure to use reasonable care on Kroger’s part? If

Kroger is ultimately held liable here, wouldn’t it amount to being held liable for a

third-party criminal’s act? (No. Kroger would be held liable for its own negligence.

The attacker would be liable for battery, though odds are he’s judgment-proof.)

Lord v. D&J Enterprises, Inc. (p. 237): The Supreme Court of South Carolina holds

that the trial court erred in granting summary judgment in favor of defendant D&J in

a case based on plaintiff Lord’s having been shot by a third-party wrongdoer while

Lord was at D&J’s Cash on the Spot business premises. The court holds that jury

questions were present with regard to whether D&J breached its duty of reasonable

care.

Points for Discussion: Ask the basis for the trial court’s decision to grant summary

judgment to the defendant. (The trial court concluded that D&J didn’t owe a duty to

the plaintiff.) Why, according to the Supreme Court, was there a duty of reasonable

care on the part of D&J and why that duty could involve an obligation to take greater

security measures to guard against such as that of the third-party gunman?

(Foreseeability, given the armed robberies that had been occurring in the area and the

knowledge of D&J’s president and the store’s manager that the armed robberies had

been taking place.) What’s necessary for a third-party wrongdoer’s acts to be

foreseeable? Is it only prior criminal acts on the premises, or criminal acts occurring

in the area? (The court says, of course, the former would be relevant if they

occurred, but that the latter can be enough for foreseeability kick in, as here, and help

to shape the duty of reasonable care.) So, on remand, the case will focus on whether

D&J breached its duty of reasonable care. Didn’t D&J take some security measures

already? (Yes, bars on windows and bullet-proof glass on tellers’ windows.) But do

those steps protect customers? Should D&J’s duty of reasonable care include, under

the circumstances, having a security guard on the premises? As the court’s analysis

indicates, that question will become important on remand.

e. Negligence per se should be presented as an alternative way of establishing a duty

and a breach thereof. Certainly its content is different from the reasonable person

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Chapter 07 – Negligence and Strict Liability

standard. It seems to have had its roots in the courts’ desire to pump some content

into the open-ended reasonable person standard. The Restatement (Second) says, in

§286, that in addition to statutes, ordinances and administrative regulations may give

rise to negligence per se claims. Example: Problem #2.

Kaltman v. All American Pest Control, Inc. (p. 240): The Supreme Court of Virginia

concludes that the trial court erroneously sustained the defendants’ demurrer to the

Kaltmans’ negligence per se claim.

Points for Discussion: Students should have little difficulty recognizing the presence

of the two elements of negligence per se in this case. After asking a student to

summarize the basic facts, ask why negligence per se applies to this case involving a

violation of a safety regulation that effectively outlawed residential use of the

pesticide that the defendants used at their customers’ home. Were the plaintiffs

within the class of persons the statue was designed to protect? Yes. Was the harm

they experienced of the sort the statute was designed to prevent? Yes. Also note why

the court rejected the defendants’ argument that the contract they had with the

plaintiffs (their customers) exclusively established the duties the defendants owed the

plaintiffs.

3. Causation of Injury

a. The actual injury requirement means that plaintiffs cannot recover nominal damages

in a negligence case.

b. Distinguish among the major types of harm that may be present in negligence cases:

personal injury (also called physical injury or bodily injury); property damage; and

economic loss. Note that compensatory damages are available for such harms. Note,

also, that with regard to personal injury, the compensatory damages may include so-

called “special” damages for more readily quantifiable harms (medical expenses, lost

wages, and the like) and so-called “general” damages for more intangible harms such

as pain and suffering. Be certain that students understand the difference between

compensatory damages and punitive damages. They should also know, at least in a

general sense, when punitive damages tend to be awarded and why they typically are

not available in a negligence case (absent proof of something going beyond

negligence).

c. Comment briefly on how negligence law deals with claimed emotional harms. Note

that when they are logically connected with a physical injury (or at least with some

physical impact on or contact with the plaintiff’s body), courts routinely award

damages for emotional harms. Although many courts no longer insist on a physical

injury or a physical impact as a perquisite to recovery of damages for emotional harm

(i.e., many courts now allow recovery for emotional harm standing alone), a

significant number of courts still follow the older approach. You may wish to discuss

the Hagan case, a negligent infliction of emotional distress case that appears in

Chapter 1’s section on case law reasoning.

Atlantic Coast Airlines v. Cook (p. 243): The Supreme Court of Indiana rejects a

claim for negligent infliction of emotional distress stemming from the airline’s

having allowed an apparently threatening passenger to remain on a flight for too

long, frightening the other passengers.

Points for Discussion: The modified impact rule and the proximity rule play a

necessary role as limiting principles in emotional distress cases. If negligent

infliction of emotional distress claims were not limited in some way, the range of

potential liabilities would reach far too wide. As limiting principles, though, are the

modified impact rule and the proximity rule much better than arbitrary (for instance,

a requirement that the victim either cry or suffer some sort of stomach trouble)? The

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Chapter 07 – Negligence and Strict Liability

plaintiffs’ strained attempts to satisfy the impact rule by reference to cigarette smoke

and floor vibrations call attention to the problem. Which is worse—the apparent

sophistry of the plaintiffs’ argument or the law’s requirement that plaintiffs bend over

backwards to meet its almost accidental-seeming requirements? In the time of social

networking and Googlable journals, the impact and proximity rules feel especially

arbitrary. If we accept that some principle is necessary to limit liability, is it possible

to come up with a scheme more “principled” than the one in existence? More

broadly, is the definition of the claim even the proper place to encode the limit?

Could a damages cap work? How about a requirement that the emotional distress

claim piggyback on a more concrete claim? How about a requirement that there be a

significant number of plaintiffs suing for the same distress?

d. The “third-party” emotional distress case is a special type of negligent infliction of

emotional distress case. (This type of case is discussed briefly in the Cook case.)

Such cases generally involve claims for emotional distress suffered by the plaintiff

when the defendant’s negligence causes physical harm to someone else (usually

someone closely related to the plaintiff). Traditionally, the “impact rule” prevented

recovery in such cases. Now, however, many courts say that plaintiffs who are in the

“zone of danger” created by the defendant’s negligence can recover for emotional

injuries caused by the threat of harm to them–even if there was no physical impact

experienced by the plaintiff (e.g., the defendant’s negligently driven car strikes the

plaintiff’s companion and narrowly misses the plaintiff). Other courts have

abandoned the zone of danger rule. These courts, however, limit recovery in other

ways, such as by requiring (a) a close personal relationship between the plaintiff and

the person harmed by the defendant’s negligence, and (b) the plaintiff’s direct

observation of the infliction of this harm on the other person. A few courts will push

liability even further, by allowing recovery simply for the plaintiff’s observing a

closely related victim in an injured state after the accident has occurred.

4. The Causation Link

a. Regarding actual cause:

i. Open your discussion with an example such as the one in the text.

ii. Discuss the basic “but for” test. This test can be stated more rigorously by

asking: “If not for [but for] the breach, would the injury have happened anyway?”

If the answer is yes, then there is no but-for causation. If the answer is no, then

but-for causation exists.

iii. Explain the “substantial factor” test that courts employ when two or more actors

may have caused the plaintiff‘s harm. Either “but-for” causation or causation in

the “substantial factor” sense will satisfy the actual cause element.

b. Regarding proximate cause:

i. Stress that we are assuming the existence of actual causation here, and that

proximate cause is concerned with the question of how far along the causal chain

the defendant’s liability extends. Although it is sometimes more difficult to

establish than actual cause, proximate cause will usually exist if actual cause

exists. Sometimes, however, there will be no proximate cause even though there

was actual cause–meaning that the causation element of a negligence claim

would not be satisfied.

ii. Note the consequences of choosing one test or another and the social policy

choices involved. For example, it often is claimed that in the 19th century, courts

interpreted proximate cause narrowly to protect infant manufacturing industries

and railroads from liability. Note, however, that when proximate cause tests are

applied broadly–as they often tend to be today–proximate cause is more likely to

be held to have existed.

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Chapter 07 – Negligence and Strict Liability

iii. You may want to discuss some of the various proximate cause tests employed by

courts. You may also find it helpful to construct a hypothetical fact situation and

ask students to solve it using the tests you have discussed. Alternatively, you may

wish to hand out some contrasting proximate cause cases for class discussion.

Three classics are: In Re An Arbitration Between Polemis and Furness, Withy &

Co., Ltd., 3 K.B. 560 (Eng. 1921); Overseas Tankship Ltd. v. Morts Dock &

Eng’g Co., Ltd., [1961] A.C. 338 (Privy Council) [noted in 36 N.Y.U. L. REV.

1043]; Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. Ct. App. 1928).

(Palsgraf’s “scope of the foreseeable risk” test is often referred to as a proximate

cause test. In effect, however, it is a test for whether a duty exists.) On the other

hand, you may want to tread fairly lightly on this subject, and simply adopt one

test or another as a convention for the class. If you elect this approach, the

natural and probable consequences test may be a good one to choose. Note the

possible effect of a narrow construction of what is natural and probable (maybe a

lack of proximate cause). Contrast that effect with the effect of a broad

construction of what is natural and probable (proximate cause likely). The broad

construction is often employed today.

iv. Problem #9 (formerly a text case) illustrates a further approach to the proximate

cause question: one in which the existence of a duty and the breach thereof are

assumed, and the court then asks whether, given the nature of the breach, the

plaintiff’s injury was foreseeable.

Black v. William Insulation Co. (p. 247): The Supreme Court of Wyoming rejects

a wrongful death claim against a subcontractor based on an automobile accident

caused by the subcontractor’s off-duty employee. The plaintiff alleged that the

employee would not have fallen asleep at the wheel if the subcontractor had

taken measures to prevent exhaustion. The court held that the employee was

exhausted on account of his decisions to commute to work and to work a second

job, not on account of the 10-hour workday mandated by the subcontractor.

Points for Discussion: The court consistently portrays Ibarra-Viernes’ work

schedule as a voluntary matter of personal choice. Do your students agree?

Could Ibarra-Viernes have been completely desperate and strapped for cash?

Most people would not “voluntarily” take on a schedule as backbreaking as

Ibarra-Viernes’ schedule. And if the second job was not “voluntary,” what about

Ibarra-Viernes’ decision to commute rather than to spend the $30 “offset” on a

hotel near the work site? The second job, after all, would have been near where

he lived. Whatever the proper outcome of the case, should the court have

considered the role of Ibarra-Viernes’ wage (a figure that no doubt exercised a far

greater influence on his driving activities than the $30 lodging “offset”)? But if

Ibarra-Viernes shouldn’t absorb all the blame for this tragedy (he’s almost

certainly judgment-proof, by the way), then who will pay the victim? Plenty of

parties profit by the conditions that keep Ibarra-Viernes from sleeping: the

subcontractor; Exxon, certainly, which benefits from the subcontractor’s low bid;

arguably, the whole society; arguably, people like the decedent. But is there any

means built into tort law for collection from those parties? Ask why the court

came down so hard on Ibarra-Viernes. Was the point simply to deflect blame

from the subcontractor toward a party who was unlikely to pay in any case? Did

the court see this as a “that’s life” case where there just isn’t anyone to blame?

v. The Stahlecker case (p. 250; commented on below) addressed proximate cause

issues in addition to the intervening cause issues that serve as the main reason

why it was chosen as a text case.

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Chapter 07 – Negligence and Strict Liability

c. In discussing later acts, forces, or events that help bring about or worsen the

plaintiff’s injuries, make certain to distinguish between acts, forces, or events that are

foreseeable and those that are unforeseeable. Only the latter are intervening causes,

which limit the extent of the defendant’s liability by restricting it to whatever harm

had occurred up to the time of the intervening cause. In other words, the harm

directly traceable to the intervening cause will not be the defendant’s responsibility.

If, however, the later, act, force or event was foreseeable, the defendant’s liability

includes responsibility for the further or worsened injuries stemming form the

foreseeable act, force, or event. Foreseeability, which plays a key role concerning

duty and breach issues, thus holds further significance with regard to causation

issues. Note that a later act, force, or event may sometimes involve wrongful

behavior by another party. That wrongful behavior may be foreseeable or

unforeseeable, depending upon all of the relevant facts and circumstances. Using

examples similar to those in the text, note that criminal acts of third parties are no

longer considered to be unforeseeable as a matter of law and therefore are not

automatically classified as intervening causes. Criminal acts of third parties may

sometimes be foreseeable–as is illustrated by recent years’ expansion of premises

liability principles (e.g., the XYZ scenario addressed in the text).

d. Stahlecker v. Ford Motor Co. (p. 250): The Supreme Court of Nebraska holds that

Cook’s abduction, sexual assault, and murder of the plaintiffs’ decedent was an

intervening cause preventing Ford and Firestone from possible liability for alleged

failures to use reasonable care in connection with the marketing and sale of an

allegedly defective tire whose malfunction left the decedent stranded in a remote

location. The demurrers of Ford and Firestone were held to have been appropriately

sustained.

Points for Discussion: Note the court’s useful discussion of foreseeability as it relates

to duty and to causation. Note, also, the court’s observation that the actual and

proximate cause issues in this case can’t be divorced from the intervening cause

analysis. (What’s a “but for” cause for purposes of the actual cause analysis? What’s

a natural and probable consequence for purposes of the proximate cause analysis?

What’s an intervening cause? All of these questions require consideration of

foreseeability.) Ask the students what‘s necessary for a later act, force, or event to be

an intervening cause. (It must be unforeseeable.) Were Cook’s actions

unforeseeable? The court thinks so. If there wasn’t an intervening cause in the

Shelton case discussed by the court, how could there be an intervening cause here?

In Shelton, there appeared to be a decent argument for foreseeability even though the

court in that case didn’t buy it. Here, the foreseeability argument seems a good bit

weaker than in Shelton (and the argument failed in Shelton). Ask the students how

the court distinguishes this case from the psychiatric ward case and the invitee case it

mentions. Ask about the plaintiffs’ attempt to argue that statistics about crime should

suffice to establish foreseeability on the part of Ford and Firestone. The court says

that statistics alone won’t get the job done in the foreseeability analysis. More

specifics would be necessary. Finally, note that Cook almost certainly is judgment-

proof. (He is unlikely to accumulate significant assets while in prison.) The

plaintiffs have a meritorious claim against Cook, but what good will it do them if

they can’t collect any of the damages that might be awarded?

e. If you have time, discuss the special rules/exceptions listed in the text’s section on

intervening cause. Stress that these rules defeat the proximate cause and intervening

force rules discussed earlier.

f. A very different special rule is supplied by a federal law that may protect appropriate

defendants against liability in certain cases dealing with information supplied in the

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Chapter 07 – Negligence and Strict Liability

Internet context by an information content provider. That rule is discussed in the

Cyberlaw in Action box on p. 253.

5. Discuss the doctrine of res ipsa loquitur, demonstrating how it can aid some plaintiffs in

proving a negligence case. Note that res ipsa is based on two considerations: the

defendant’s superior knowledge (derived from his “exclusive control”); and the logical

inference that someone was probably negligent and that the defendant is probably the

relevant “someone.” Res ipsa is sometimes used today in plane crash cases in which

plaintiffs are often at a significant disadvantage in proving the crash’s cause. You may

wish to note some commentators’ suggestion that the third element of res ipsa (proof that

the plaintiff was in no way responsible for his own injury) should be dropped if the

jurisdiction has adopted a comparative fault system.

6. Defenses to Negligence Claims

a. Contributory negligence. Under this traditional defense, the plaintiff’s failure to

exercise reasonable care for his own safety would prevent him from winning the case

if his failure to use reasonable care was a substantial factor in producing his injury.

Just as there must have been a causal relationship between the defendant’s breach of

duty and the plaintiff’s injury before the defendant will be liable for those injuries, so

too must there have been a causal relationship between a plaintiff’s failure to exercise

reasonable care for his own safety and his injury in order for that failure to have the

effect of barring his recovery. Stress that under the traditional contributory

negligence rule, a plaintiff’s failure to use reasonable care for his own safety could be

a substantial causation factor even if it was significantly less of a causation factor

than the defendant’s breach of duty. Accordingly, the rule often had the harsh effect

of barring the plaintiff from recovery even when the defendant was much more at

fault than the plaintiff was. The harshness of the contributory negligence rule has

caused nearly all states to replace with it with a comparative negligence or

comparative fault scheme. Even so, it is important to understand contributory

negligence because it provides the underpinnings for what happens in “mixed”

comparative negligence states when the plaintiff’s degree of fault exceeds that of the

defendant.

b. Comparative negligence. Open with a reminder of the potential harshness of the

traditional contributory negligence rule, under which a defendant could have a

complete defense even when the defendant was considerably more at fault than the

contributorily negligent plaintiff. Comparative negligence rules have received the

widespread adoption noted in the text because of their ability to lessen the harshness

of contributory negligence. Explain the operation of comparative negligence

principles, making certain to distinguish between the “pure” and “mixed” forms.

Note that under the mixed form, the defendant has a complete defense–as with

traditional contributory negligence–if the plaintiff’s degree of responsibility for her

injuries exceeds that of the defendant.

c. Assumption of risk. Traditionally, plaintiffs who voluntarily expose themselves to a

known danger created by the defendant’s negligence assumed the risk of injury and

were denied any recovery. This is assumption of risk of the implied variety. Note

that knowledge and voluntariness typically are inferred from the facts. Sometimes

the inference is a matter of law; the classic example is getting hit by a foul ball at a

baseball game. There is also an express variety of assumption of risk. For this variety

to exist, there must normally be an enforceable exculpatory clause in a contract.

Such clauses are discussed in Chapter 15. You may want to assign that portion of

Chapter 15.

d. The emergence of comparative fault. Often the terms comparative negligence and

comparative fault are used interchangeably. Technically, however, the former covers

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Chapter 07 – Negligence and Strict Liability

only negligence and the latter incorporates all kinds of fault, including assumption of

risk (except for express assumption of risk). Many states have comparative fault

statutes.

Berberich v. Jack (formerly a text case but now Problem #6): The Supreme Court of

South Carolina regards the state’s comparative negligence statute as setting up a

comparative fault rule, and holds that a plaintiff’s negligent failure to use reasonable

care for his own safety is relevant not only in cases in which the defendant is alleged

to have been negligent but also in cases in which the defendant is alleged to have

acted recklessly.

Points for Discussion: Ask a student to summarize the basic facts here. Ask how

Berberich (the plaintiff) seeks to have Jack’s actions characterized here. (As reckless

actions rather than merely negligent actions.) Why? (Presumably because he thought

her actions went beyond negligence, but almost certainly also because he hoped the

court would conclude that any negligence on his own part shouldn’t be compared

against the defendant’s fault if that fault amounted to reckless rather than negligence.)

How does the court resolve the issue, and why? (By treating the comparative

negligence law as setting forth a broader principle of comparative fault (as many

courts do), and by concluding that the policy underlying the comparative approach

adopted by the legislature seemed applicable regardless of whether the defendant

acted negligently or in a somewhat worse manner (recklessly). However, if the

defendant had committed an intentional tort, the comparative negligence statute

wouldn’t have applied. So that students have a clear understanding of the case, you

might suggest that they review Chapter 6’s introduction to types of fault in tort cases

(negligence, recklessness, and intentional wrongdoing).

Additional example: Problem #12.

B. Strict Liability

1. By way of introduction, stress:

a. What strict liability is and how it is different from the fault-based approaches of

negligence and intentional torts.

b. The rationale for imposing it. When strict liability is imposed on an activity, the legal

system often is telling the operator of that activity something along these lines:

“O.K., what you’re doing has enough social utility that we won’t outlaw it, but it is

sufficiently dangerous that you should shoulder the economic risk associated with it.

And if you can pass the costs of bearing that risk–mainly insurance costs–on to

consumers, then it’s spread about through society and no one really gets seriously

hurt.”

c. The forms it assumes.

2. Abnormally dangerous activities

a. Here, the main question is what sorts of activities qualify. After giving a few

examples, use the Dyer case to discuss the Restatement‘s factors for answering this

question.

Dyer v. Maine Drilling & Blasting, Inc. (p. 255): The Supreme Judicial Court of

Maine overrules a precedent that had established negligence principles as controlling

cases alleging harm from defendants’ blasting activities. Instead, the court adopts

strict liability as the controlling legal doctrine in such cases.

Points for Discussion: Have a student summarize the basic facts. Note that in

adopting strict liability for blasting cases, the court decides it’s time to quit

swimming against the tide. Most courts say that even though blasting is a necessary

and important activity in some instances, strict liability should apply to it. Ask

students why blasting is typically classified as an abnormally dangerous activity.

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Chapter 07 – Negligence and Strict Liability

Work through the Restatement factors outlined in the court’s opinion.

b. Additional Example: Problems #10.

2. Statutory strict liability

a. When you consider workers’ compensation statutes, you may wish to incorporate

Chapter 51’s more complete discussion of the subject.

b. Briefly hit the other kinds of statutory strict liability. You might want to bring in

Chapter 20’sdiscussions of Restatement (Second) § 402A and of the new Restatement

(Third) of Torts: Product Liability.

C. Tort Reform

1. Discuss the origins of the tort reform movement and the controversy that surrounds it.

Also note typical tort reform devices and their objectives.

IV. RECOMMENDED REFERENCES:

A. W. PROSSER & W. KEETON, THE LAW OF TORTS. The classic torts hornbook.

B. M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 85-99 (1977). A useful

analysis of, among other things, the evolution of modern negligence principles.

C. L. FRIEDMAN, A HISTORY OF AMERICAN LAW 409-27 (2d ed. 1985). Its treatment of

the evolution of modern negligence principles includes a discussion of many seminal cases.

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