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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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