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Chapter 07 - Negligence and Strict Liability
7-9
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?
why it was chosen as a text case.
c. In discussing later acts, forces, or events that help bring about or worsen the plaintiff’s
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
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).
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
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
claim against Cook, but what good will it do them if they can't collect any of the
Chapter 07 - Negligence and Strict Liability
7-10
damages that might be awarded?
e. If you have time, discuss the special rules/exceptions listed in the text’s section on
f. A very different special rule is supplied by a federal law that may protect appropriate
Cyberlaw in Action box on p. 253.
5. Discuss the doctrine of res ipsa loquitur, demonstrating how it can aid some plaintiffs in
relevant “someone.” Res ipsa is sometimes used today in plane crash cases in which
jurisdiction has adopted a comparative fault system.
6. Defenses to Negligence Claims
a. Contributory negligence. Under this traditional defense, the plaintiff's failure to
Just as there must have been a causal relationship between the defendant's breach of
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
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
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
Chapter 07 - Negligence and Strict Liability
7-11
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
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
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
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
(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.
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
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
Chapter 07 - Negligence and Strict Liability
7-12
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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
b. Additional Example: Problems #10.
2. Statutory strict liability
a. When you consider workers' compensation statutes, you may wish to incorporate
(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:
the evolution of modern negligence principles includes a discussion of many seminal cases.
V. ANSWERS TO PROBLEM CASES:
1. Yes. Cingular owes no duty to Williams. Although it is widely understood that auto accidents
too attenuated to be called “proximate.” There is no way for Cingular to foresee, at point of
2. No. The Supreme Court of Kentucky held that the plaintiff could rely on negligence per se to
experienced by Hargis was the very type of harm the regulation was meant to guard against.
36 (Ky. Sup. Ct. 2005).
3. No, Sears has not breached a duty under the reasonable person standard. This is a landowner
Hresil could only prove that the gob was on the floor for ten minutes. This, it said, was
4. No. Delgado was an invitee to whom Trax owed a duty of reasonable care to keep the
Chapter 07 - Negligence and Strict Liability
7-13
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
premises reasonably safe. That duty can include an obligation to take reasonable steps to
guard against harm coming to the invitee at the hands of third parties who are on the premises,
if such harm was foreseeable. Here, the relevant facts (including what Trax’s interior guard
(Nichols) had observed) made it foreseeable that Delgado could experience harm in the
(Cal. Sup. Ct. 2005).
5. Performance was not liable on respondeat superior grounds. With the accident occurring as
Weese drove home from work, Weese was outside the scope of employment at that time.
although Performance still did not check Weese’s driving record, any negative information
learned in such a check probably would have influenced only Performance’s decision on
chance of success. Raleigh v. Performance Plumbing and Heating, Inc., 130 P.3d 1011
(Colo. Sup. Ct. 2006)
6. The Supreme Court of South Carolina reversed the lower court’s decision and remanded the
case for a new trial because the legal instructions had the potential to confuse the jury and to
under South Carolina’s comparative negligence law. An instruction on recklessness was
warranted here, according to the Supreme Court, which also held that even if Jack’s conduct
7. The Supreme Court of Indiana holds that the trial court correctly denied Kroger’s motion for
security measures suitable to protect them against foreseeable acts by third-party wrongdoers
N.E.2d 1 (Ind. Sup. Ct. 2010).
8. The Supreme Court of Oklahoma held that the trial court wrongly granted summary judgment
in Carolina Forge’s favor. Given the nature of the business trip (which was sole reason why
Chapter 07 - Negligence and Strict Liability
7-14
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
employment at the time of the accident. Hence, summary judgment sh0uld not have been
granted in favor of the defendant on the respondeat superior claim. Neither should the trial
court have granted the defendant summary judgment on the negligent entrustment claim.
Carolina Forge was aware that alcohol would be consumed on this business trip, which called
for considerable entertaining of clients. Carolina Forge’s expense policies clearly
Carolina Forge Co., 306 P.3d 544 (Okla. Sup. Ct. 2013).
9. Yes. The U.S. Court of Appeals for the Fifth Circuit stated that the applicable proximate
cause test under Texas law (which controlled the case) was whether the defendants “might by
the exercise of ordinary care have foreseen that some similar injury [similar to what occurred
in the case] might result” from the defendants’ breach of duty. The court concluded that the
phosphorous (number 1), anhydrous ammonia, liquified petroleum gas, vinyl chloride,
gasoline, crude petroleum, motor fuel antiknock compound, methyl and ethyl chloride, sulfuric
acid, and chloroform. The U.S. Court of Appeals for the Seventh Circuit observed that the
logic of the district court's opinion would dictate strict liability for all 52 materials that rank
deter, at reasonable cost, the accidental spillage of acrylonitrile from rail cars. The railroad
network is a hub-and-spoke system and the hubs are in metropolitan areas. With most
hazardous chemicals (by volume of shipment) being at least as hazardous as acrylonitrile, it is
unlikely that the shipment thereof could be rerouted around all metropolitan areas in the
916 F.2d 1174 (7th Cir. 1990).
11. Yes, according to the U.S. Court of Appeals for the Fourth Circuit. In light of the facts,
APCO had neither actual nor constructive knowledge of potential histoplasmosis risks and
therefore did not owe Hoschar a duty of reasonable care. There was no evidence that
anyone at APCO actually knew of such risks. The reference to histoplasmosis on the
163 (4th Cir. 2014).
12. The South Carolina Supreme Court held that in view of South Carolina's adoption of
comparative negligence, implied assumption of risk no longer is a complete defense to
recovery in a negligence case. Instead, it is one of the factors to be balanced against the
defendant's negligence in determining the parties' relative fault. The court effectively treated
Chapter 07 - Negligence and Strict Liability
7-15
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
South Carolina’s mixed comparative negligence system as a comparative fault system. Ono
remand, a question for the jury would be whether the plaintiff’s fault exceeded that of the
defendant. Davenport v. Cotton Hope Plantation, 508 S.E.2d 565 (S.C. Sup. Ct. 1998).
