Breach of Duty
If a legal duty of care exists, then a plaintiff must show that the defendant did not meet it. Normally,
the plaintiff proves this by showing that the defendant did not act as a reasonable person would have
under the circumstances.
When a legislature sets a minimum standard of care for a particular activity, in order to protect a
certain group of people, and a violation of the statute injures a member of that group, the defendant has
committed negligence per se. A plaintiff who can show negligence per se does not have to prove
breach of duty.
Causation
To win, the plaintiff must also show that the defendant’s breach of duty caused the plaintiff’s harm.
Courts look at two separate causation issues: Was the defendant’s behavior the factual cause of the
harm? Was it the proximate cause?
Res Ipsa Loquitor
Meaning “the things speaks for itself.” Normally, a plaintiff must prove factual cause and proximate
cause in order to establish negligence. This rule allows a court to infer causation because an event
happened that would not occur unless the defendant has been negligent.
Additional Case: You Be the Judge: Grith v. Valley of Sun
Recovery, Inc.1
Facts: Don Gorney, a repossession man who worked for Valley of Sun Recovery, attempted to
repossess Marsalek’s car. He arrived at 4:00, unscrewed an overhead street lamp, and then unlocked the
car, setting off its alarm. Neighbors investigated and called the police, while Gorney hid. When they
had left, he again set off the car alarm, bringing out various neighbors, including Griffith. One neighbor
passed a shotgun to another, but it went off accidentally and severely injured Griffith, who sued Valley
of Sun. The trial court granted summary judgment for Valley of Sun, and Griffith appealed.
You Be the Judge:
• Did Valley of Sun have a duty to Griffith?
• If so, did the company breach its duty?
• If so, was the breach the factual cause of the injury?
• If so, was this type of injury foreseeable?
Holding: Summary judgment for Valley of Sun reversed and remanded for trial. The Court held “if
reasonable minds could differ and there is a debatable question on the foreseeability of harm, then such
an issue is ordinarily a question for the jury. In [this] case, previous efforts to take possession of the car
were frustrated by the car burglar alarm. Gorney was aware of the violent confrontation that had
occurred in a prior attempt. Gorney’s actions created an explosive atmosphere, created confusion, and
set the stage for the resulting injury. The facts present a jury question as to whether a reasonable man
could have foreseen that his actions were creating a confrontation where someone could be injured.”
On the issue of superseding cause, the Court relied on the fact that Gorney was in the driver’s seat of
the car, with the neighbor pointing the shotgun at Gorney from outside the passenger window, when
the neighbor passed the gun to Williams, the gun discharged, and Griffith was shot. Since Gorney’s
(and Valley of Sun’s) conduct continued up until Griffith was injured there was no superseding cause
under Arizona law.
Question: Does this decision mean that Valley of Sun is liable for Griffith’s injuries?
Answer: No. It means only that Griffith can present his case to a jury.
1 126 Ariz. 227, 613 P.2d 1283 Arizona Court of Appeals, 1980.
Question: Why is Valley of Sun even a defendant? It was Gorney who was present.
Answer: The concept of respondeat superior means that an employer is liable for the negligence of
Question: How could Valley of Sun possibly have a duty to Griffith? It was attempting to
repossess Marsalek’s car, not Griffith’s.
Answer: Valley of Sun can be liable for negligence even though it did not foresee precisely what
Question: Why didn’t Griffith sue the neighbor who brought the gun outside, instead?
Answer: Griffith may have been seeking a deeper pocket. He may have concluded that a jury
Damages
A plaintiff must prove that he has been injured, or that he has had some kind of measureable losses.
Additional Case: Ra v. Superior Court 2
Facts: Michelle Ra and her husband Phil were shopping at an Armani Exchange when a large sign fell
and hit Phil Ra causing him serious injury. At the time of the injury, Michelle Ra was standing about 10
to 15 feet away from Phil with her back to him. Although she did not see the sign fall on her husband,
Michelle heard a loud bang, turned, saw her husband bent over in pain and rushed to his side. Ten days
later, Michelle suffered a miscarriage, which she attributed to the accident.
The Ras sued Armani for negligence in allowing the sign to fall, and for the emotional distress
Michelle suffered. Regarding Michelle’s claim, the trial court granted summary judgment to the store,
holding that Michelle had not made out a claim for bystander recovery because she did not see the
accident happen. Michelle appealed.
Issue: May a bystander recover for emotional distress cause by an accident they did not see?
Holding: Judgment for Armani affirmed. Michelle testified during a deposition that she was not sure
whether her husband was involved in any kind of accident at the time she heard the loud bang, but she
believed it was more likely than not that he was because the noise came from an area of the store
where her husband was shopping.
The State Supreme Court has held that in order to recover as a bystander for negligent
infliction of emotional distress, the plaintiff must prove “(1) that she is closely related to the injury
victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware
that it is causing injury to the victim; and (3) as a result suffers serious emotional distress-a reaction
beyond that which would be anticipated in a disinterested witness and which is not an abnormal
response to the circumstance.” The Court had ruled out liability for those “who may have suffered
emotional distress on viewing or learning about the injurious consequences of his conduct” instead of
actually witnessing the injury-causing event itself.
In this case, Michelle did not actually see the sign fall on her husband. Without a reasonable
certainty her husband was being injured by whatever cause the loud bang at the time she heard it,
Michelle experienced fear that he husband may have been injured. Although that fear may have been
real and substantial, it is not recoverable in a bystander claim.
Question: Why did the judge direct a verdict in favor of Armani?
Answer: The Court concluded that Michelle Ra could not recover for the emotional distress she
2 154 Cal. App. 4th 142, 64 Ca. Rptr.3d 539, California Court of Appeals, 2007.
Question: Michelle Ra heard the loud bang, feared her husband was hurt, turned and saw him in
pain and rushed to his side. As a result, Michelle suffered a miscarriage. Why isn’t that an injury?
Answer: The Court does not deny that Michelle Ra suffered real and substantial emotional distress
Question: How does the law determine whether a plaintiff can recover for emotional distress
caused by an accident?
Answer: The California Supreme Court established a three-part test the plaintiff must satisfy in
order to recover: 1.The plaintiff is closely related to the injured victim; 2.The plaintiff is present at
Question: Why did the Court say that Michelle did not satisfy this test? She was at the store, heard
the loud bang in the area of the store where her husband was shopping, and feared he might be
injured by whatever caused the loud noise.
Answer: The Court ruled that Michelle could not prove the second prong of the test: although she
was present at the time the injury-causing event occurred, Michelle was not aware at the time she
Question: Why should this prevent her from recovering?
Answer: The Supreme Court explained that by limiting bystander recovery to those who actually
witness the injury-causing event, it recognizes that it is “the traumatic effect of the perception of
Defenses
Contributory and Comparative Negligence
In a contributory negligence state, a plaintiff who is even slightly responsible for his own injury
recovers nothing; in a comparative negligence state, the jury may apportion liability between plaintiff
and defendant.
Assumption of the Risk
Wherever there is an obvious hazard, a special rule applies. Assumption of the risk: a person who
voluntarily enters a situation that has an obvious danger cannot complain if she is injured.
Case: Truong v. Nguyen3
Facts: Anthony Nguyen and Rachel Truong went for a ride on Anthony’s Polaris jet ski. Cu Van
Nguyen and Choung Nguyen (no relation to Anthony) were both riding a Yamaha Waverunner. Both jet
skis permitted a driver and passenger, each seated. The two jet skis collided near the middle of Coyote
Lake, killing Rachel and injuring the others.
Rachel’s parent sued Anthony, Cu Van, and Chuong alleging they were negligent in operating the
jet skis. The defendants moved for summary judgment claiming assumption of the risk applies to jet
skiing. Rachel’s parents appealed arguing that jet skiing was not a sport, and Rachel had never assumed
any risk.
Issue: Does assumption of the risk apply to jet skiing?
Decision: Yes. Jet skiing is a sport and its participants assume certain risks of injury.
3 67 Cal. Rptr.3d 675, 156 Cal.App.4th 865. California Court of Appeals, 2007.
Reasoning: In sports, assumption of the risk prohibits liability because the plaintiff assumed risks
inherent in that sport by consenting to participate. Even when a participant’s conduct violates internal
rules of the sport, and they may face internal sanctions, imposing legal liability for such conduct would
fundamentally change the nature of the sport by deterring players to participate vigorously.
An activity is considered a sport if such activity is done for enjoyment or thrill, requires physical
exertion, elements of skill, and involves a challenge with a potential risk of injury. This applies equally
to competitive and non-competitive active sports. Based on this, the Court concluded that jet skiing is a
sport. Jet skiing is active, it requires physical skill, and it poses a significant risk of injury, especially
when you jet ski with others.
Rachel’s parents argued that Rachel was merely a passenger and was not actively engaged in the
sport. The Court, however, concluded that even a passenger participates in the sport because they are
required to use skill and such participation involves a challenge with a risk of injury. The thrill of jet
skiing is shared by the driver and the passenger alike.
Question: What is assumption of the risk?
Answer: Assumption of the risk is a defense to a negligence claim, whereby a person who
Question: Is the Court saying that death is an obvious danger when jet skiing?
Answer: Not necessarily. What the Court is saying is that Rachel voluntarily participated in a sport
Question: But Rachel was a passenger on a jet ski out for fun on a warm afternoon, how is that
engaging in a sport?
Answer: The Court made it clear that jet skiing is a sport, regardless of whether it is competitive
Strict Liability
A defendant is strictly liable for harm caused by an ultra-hazardous activity or a defective product.
Strict liability means that if the defendant’s conduct led to the harm, the defendant is liable, even if she
exercises extraordinary care.
Ultra-hazardous Activities
Activities considered abnormally dangerous and involving a high degree of risk and harm, include
using harmful chemicals, blasting, and keeping wild animals.
Product Liability
Defective products can also create strict liability. Over the years, most courts have adopted one of two
tests for design and warning cases. The first is consumer expectation. Here, a court finds the
manufacturer liable for defective design if the product is less safe than a reasonable consumer would
expect. If a smoke detector has a 3 percent failure rate and the average consumer has no way of
anticipating that danger, effective cautions must be included, though the design may be defective
anyway. Many other states use a risk-utility test. Here, a court must weigh the benefits for society
against the dangers that the product poses.
Additional Case: NJ Dept. of Environmental Protection v. Alden
Leeds, Inc.4
Facts: The Alden Leeds company packages, stores, and ships swimming pool chemicals. The firm does
most of its work at its facility in Kearns, New Jersey. The day before Easter, a fire of unknown origin
broke out in “Building One” of the company’s site, releasing chlorine gas and other potentially
dangerous by-products into the air. There were no guards or other personnel on duty. The fire caused $9
million in damage to company property. Because of the potentially dangerous gas, the Department of
Environmental Protection (DEP) closed the New Jersey Turnpike along with half a dozen other major
highways, halted all commuter rail and train service in the area, and urged residents to stay indoors
with windows closed. An unspecified number of residents went to local hospitals with respiratory
problems.
Based on New Jersey’s Air Pollution Control Act (APCA), the DEP imposed a civil fine on Alden
Leeds for releasing the toxic chemicals. The Appellate Court reversed, finding that there was no
evidence the company had caused the fire or the harm, and the case reached the state’s high court.
Issue: Did the company cause the harm?
Holding: The Court affirmed that the APCA is a strict liability statute and that there must be a causal
nexus between the defendant and the harm. It reversed the Appellate Court’s holding that the storing of
hazardous chemicals by Alden Leeds does not satisfy that nexus. The DEP does not have to prove that
the chemical operator started the fire. In 1962, this Court adopted the proposition that “an
ultra-hazardous activity which introduces an unusual danger into the community should pay its own
way in the event it actually causes damage to others.” An actor who chooses to store dangerous
chemicals should be responsible for the release of those chemicals into the air. That Alden Leeds
lawfully and properly stored chemicals does not alter that conclusion. The risks attendant to the storage
of dangerous substances counsel in favor of precautions to prevent their release. Alden Leeds took no
such precautions. On the day of the fire, there was no one stationed at the plant to alert the authorities
as soon as a fire or other unforeseen calamity erupted. There was no response to the alarm that
sounded. The law imposes a duty upon those who store hazardous substances to ensure that the
substances on their property do not escape in a manner harmful to the public. Regardless of what
started the fire, it was the knowing storage of chemicals by Alden Leeds that caused the release of air
contaminants once the fire reached the chemicals.
Question: Who won?
Question: Did Alden Leeds start the fire that led to the release of toxic fumes?
Question: They why is Alden Leeds liable?
Answer: This is an example of strict liability. Strict liability is liability without fault; it arises
Question: What did Alden Leeds do that subjected it to strict liability?
Answer: It stored various hazardous chemicals on its property. The Court stated “the law imposes
Question: Alden Leeds is in the business of selling chemicals and it stored them lawfully. Does
Answer: Precisely.
Question: How is that fair?
Answer: The law only applies strict liability to certain ultra-hazardous activities. Those who
Question: How does a person who engages in such activities protect itself from liability?
4 153 N.J. 272; 708 A.2d 1161; 1998 N.J. LEXIS 212; 46 ERC(BNA) 1447 (Supreme Court of New Jersey 1998).
Answer: First, it must follow all laws regulating such activities. Second, it must exercise a high
Question: Wouldn’t such insurance be expensive?
Question: Is that fair?
Answer: Consider the alternative. If the company does not obtain insurance and cannot
Question: How far should strict liability go? Suppose a tornado struck Alden Leeds, released
poisonous gas into the atmosphere, and killed twenty people. Should the company be liable?
Answer: It appears that the majority here would answer “yes.” In their view, it is the storage that
Multiple Choice Questions
1. Jane writes an article for a newspaper reporting that Ann was arrested for stealing a car. The story is
entirely false. Ann is not a public figure. Which of the following torts has Jane committed?
(a) Ordinary slander
(b) Slander per se
(c) Libel
(d) None of the above
2. Refer back to question 1. If Ann decides to sue, she ________________ have to show evidence that
she suffered an injury. If she ultimately wins her case. a jury ________________ have the option
to award punitive damages.
(a) will; will
(b) will; will not
(c) will not; will
(d) will not; will not
3. Sam sneaks up on Tom, hits him with a baseball bat, and knocks him unconscious. Tom never saw
Sam coming. He wakes up with a horrible headache. Which of the following torts has Sam
committed?
(a) Assault
(b) Battery
(c) Both A and B
(d) None of the above
4. Al runs a red light and hits Carol’s car. She later sues, and claims the following losses:
$10,000 — car repairs
$10,000 — medical expenses
$10,000 — lost wages (she could not work for two months after the accident)
$10,000 — pain and suffering
If the jury believes all of Carol’s evidence and she wins her case, how much will she receive in
compensatory damages?
(a) $40,000
(b) $30,000
(c) $20,000
(d) $10,000
(e) $0
5. Zack lives in a state that prohibits factory laborers from working more than 12 hours in any 24
hour period. The state legislature passed the law to cut down on accidents caused by fatigued
workers.
Ignoring the law, Zack makes his factory employees put in 14 hour days. Eventually, a worker at
the end of a long shift makes a mistake and severely injures a coworker. The injured worker sues
Zack.
Which of the following terms will be most relevant to the case?
(a) Res ipsa loquitur
(b) Assumption of the risk
(c) Negligence per se
(d) Strict liability
Essay Questions
1. Caldwell was shopping in a K-Mart store, carrying a large purse. A security guard observed her look
at various small items such as stain, hinges, and antenna wire. On occasion she bent down out of
sight of the guard. The guard thought he saw Caldwell put something in her purse. Caldwell
removed her glasses from her purse and returned them a few times. After she left, the guard
approached her in the parking lot and said that he believed she had store merchandise in her
pocketbook but was unable to say what he thought was put there. Caldwell opened the purse, and
the guard testified he saw no K-Mart merchandise in it. The guard then told Caldwell to return to
the store with him. They walked around the store for approximately 15 minutes, while the guard
said six or seven times that he saw her put something in her purse. Caldwell left the store after
another store employee indicated she could go. Caldwell sued. What kind of suit did she file, and
what should the outcome be?
Answer: Caldwell sued for false imprisonment. The jury found in her favor, and the Court of
2. Tata Consultancy of Bombay, India, is an international computer consulting firm. It spends
considerable time and effort recruiting the best personnel from India’s leading technical schools.
Tata employees sign an initial three-year employment commitment, often work overseas, and agree
to work for a specified additional time when they return to India. Desai worked for Tata, but then
quit and formed a competing company, which he called Syntel. His new company contacted Tata
employees by phone, offering more money to come work for Syntel, bonuses, and assistance in
obtaining permanent resident visas in the United States. At least sixteen former Tata employees left
their work without completing their contractual obligations and went to work for Syntel. Tata sued.
What did it claim, and what should be the result?
Answer: Tata sued for interference with contractual rights. The United States District Court
3. You Be the Judge: WRITING PROBLEM Johnny Carson was for many years the
star of a well-known television show, The Tonight Show. For about 20 years, he was introduced
nightly on the show with the phrase, “Here’s Johnny!” A large segment of the television watching
public associated the phrase with Carson. A Michigan corporation was in the business of renting
and selling portable toilets. The company chose the name “Here’s Johnny Portable Toilets,” and
coupled the company name with the marketing phrase, “The World’s Foremost Commodian.”
Carson sued, claiming that the company’s name and slogan violated his right to commercial
exploitation.
Argument for Carson: The toilet company is deliberately taking advantage of Johnny Carson’s
good name. He worked hard for decades to build a brilliant career and earn a reputation as a
creative, funny, likable performer. No company has the right to use his name, his picture, or
anything else closely identified with him, such as the phrase “Here’s Johnny.” The pun is
personally offensive and commercially unfair.
Argument for Here’s Johnny Portable Toilets: Johnny Carson doesn’t own his first name. It is
available for anyone to use for any purpose. Further, the popular term “john,” meaning toilet, has
been around much longer than Carson or even television. We are entitled to make any use of it we
want. Our corporate name is amusing to customers who have never heard of Carson, and we are
entitled to profit from our brand recognition.
Answer: The Court of Appeals ruled for Carson. Carson v. Here’s Johnny Portable Toilets, Inc., 698
F.2d 831 (6th Cir. 1983). The company was clearly and deliberately appropriating Carson’s identity
4. At approximately 7:50 p.m., bells at the train station rang and red lights flashed, signaling an
express train’s approach. David Harris walked onto the tracks, ignoring a yellow line painted on
the platform instructing people to stand back. Two men shouted to Harris, warning him to get off
the tracks. The train’s engineer saw him too late to stop the train, which was traveling at
approximately 99 mph. The train struck and killed Harris as it passed through the station. Harris’s
widow sued the railroad, arguing that the railroad’s negligence caused her husband’s death.
Evaluate her argument.
Answer: Harris was a trespasser and as a result the railroad had no duty of due care to him. The
railroad would be liable only if it caused Harris’s death by reckless or intentional conduct. There
5. A new truck, manufactured by General Motors Corp., stalled in rush hour traffic on a busy
interstate highway because of a defective alternator, which caused a complete failure of the truck’s
electrical system. The driver stood nearby and waved traffic around his stalled truck. A panel truck
approached the GMC truck, and immediately behind the panel truck, Davis was driving a
Volkswagen Fastback. Because of the panel truck, Davis was unable to see the stalled GMC truck.
The panel truck swerved out of the way of the GMC truck, and Davis drove straight into it. The
accident killed him. Davis’ widow sued GMC. GMC moved for summary judgment, alleging (1) no
duty to Davis, (2) no factual causation, and (3) no foreseeable harm. Comment.
Answer: Summary judgment for GMC denied. General Motors Corp. v. Davis, 141 Ga. App. 495,
233 S.E.2d 825 (Ga. Ct. App. 1977). GMC owes a duty to everyone on the highway since the
Discussion Questions
1. You have most likely heard of the Liebeck v. McDonalds case. Liebeck spilled hot McDonald’s
coffee in her lap, and suffered third-degree burns. At trial, evidence showed that her cup of coffee
was brewed at 180 degrees, and that, more typically, a restaurant’s “hot coffee” is in the range of
140-160 degrees.
A jury awarded Liebeck $160,000 in compensatory damages and $2.7 million in punitive damages.
The judge reduced the punitive award to $480,000, or three times the compensatory award.
Comment on the case, and whether the result was reasonable.
2. Celebrities often have problems with tabloids and the paparazzi. It is difficult for public figures to
win libel lawsuits because they must show actual malice. Intrusion lawsuits are also tricky and
flocks of photographers often stalk celebrities at all hours.
Is this right? Should the law change to offer more privacy to famous people? Or is a loss of privacy
just the price of success?
3. Many retailers have policies that instruct employees not to attempt to stop shoplifters. Some store
owners fear false imprisonment lawsuits and possible injuries to workers more costly than losses
related to stolen merchandise.
Are these “don’t be a hero” policies reasonable? Would you put one in place if you owned a retail
store?
4. Imagine an undefeated high school football team on which the average lineman weighs 300 pounds.
Also, imagine a 0-10 team on which the average lineman weighs 170 pounds. The undefeated team
sets out to hit as hard as they can on every play, and to run up the score as much as possible.
Before the game is over, 11 players from the lesser team have been carried off the field with
significant injuries. All injuries were the result of “clean hits” – none of the plays resulted in a
penalty. Even late in the game, when the score is 70-0, the undefeated team continues to deliver
devastating hits that are far beyond what would be required to tackle and block. The assumption of
the risk doctrine exempts the undefeated team from liability. Is this reasonable?
5. People who serve alcohol to others take a risk. In some circumstances, they can be held legally
responsible for the actions of the people they serve. Is this fair? Should an intoxicated person be
the only one liable if harm results? If not, in what specific circumstances is it fair to stretch
liability to other people?
Bonus Exam Strategy:
Question: According to a complaint filed against supermodel Naomi Campbell by her maid Ms.
Gibson, Campbell accused Ms. Gibson of stealing a pair of jeans. When Ms. Gibson bent down to
look for the pants, Ms. Campbell allegedly hit her on the back of the neck, berated Ms. Gibson
with insults, and then Ms. Campbell’s “agents” allegedly prevented Ms. Gibson from leaving by
threatening to withhold her pay, and both Ms. Campbell and her “agents” threatened further
bodily harm. What torts might be included in Ms. Gibson’s complaint?
Strategy: This question asks about torts—several torts. Let’s take them in order: Ms. Gibson
alleges that Ms. Campbell hit her. We know battery is an offensive or unwanted touching. Next,
Ms. Gibson alleges that Ms. Campbell’s agents prevented Ms. Gibson from leaving by
threatening to withhold her pay and with bodily harm. We know false imprisonment is the
intentional restraint of another without reasonable cause and without their consent. We also
know that assault is putting someone in imminent fear of a battery. Lastly, intentional infliction
of emotional distress results from extreme and outrageous conduct that causes serious emotional
harm.
Result: Ms. Gibson can sue for battery based on Ms. Campbell allegedly hitting her on the back of
the neck; false imprisonment for Ms. Campbell and her agents using force and intimidation to
prevent Ms. Gibson from leaving; assault for being put in imminent fear of a battery based on the
threats of bodily injury; and lastly, the entire episode may be considered extreme and outrageous
conduct which caused emotional distress to Ms. Gibson.