Business Law Chapter 8 Homework The Extent The Burden The Defendant Was

Unlock access to all the studying documents.

View Full Document

Chapter 8

NEGLIGENCE AND STRICT LIABILITY

I. Negligence 1. Scope of Liability (Proximate Cause)

A. Breach of Duty of Care 2. Foreseeability

1. Reasonable Person Standard 3. Superseding Cause

a. Children C. Harm

b. Physical Disability D. Defenses to Negligence

c. Mental Deficiency 1. Contributory Negligence

d. Superior Skill or Knowledge 2. Comparative Negligence

e. Emergencies 3. Assumption of Risk

f. Violation of Statute II. Strict Liability

2. Duty to Act A. Activities Giving Rise to Strict Liability

3. Duties of Possessors of Land 1. Abnormally Dangerous Activities

a. Second Restatement 2. Keeping of Animals

b. Third Restatement a. Trespassing Animals

4. Res Ipsa Loquitur b. Nontrespassing Animals

B. Factual Cause B. Defenses to Strict Liability

1. Contributory Negligence

2. Comparative Negligence

3. Assumption of Risk

Cases in This Chapter

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

Soldano v. O’Daniels

Love v. Hardee’s Food Systems, Inc.

Palsgraf v. Long Island Railroad Co.

Moore v. Kitsmiller

Klein v. Pyrodyne Corporation

Palumbo v. Kikirk

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

Chapter Outcomes

After reading and studying this chapter, the student should be able to:

List and describe the three required elements of an action for negligence.

Explain the duty of care that is imposed on (a) adults, (b) children, (c) persons with a physical

disability, (d) persons with a mental deficiency, (e) persons with superior knowledge, and (f) persons

acting in an emergency.

Differentiate among the duties that possessors of land owe to trespassers, licensees, and invitees.

Identify the defenses that are available to a tort action in negligence and those that are available to a

tort action in strict liability.

Identify and describe those activities giving rise to a tort action in strict liability.

TEACHING NOTES

A tort is a civil wrong that causes injury to persons, property, or economic

interests. The last chapter covered intentional torts. This chapter covers the rest

of tort law: negligence and strict liability.

Intentional torts are committed when people take an action desiring to

injure someone or when they take an action that is substantially certain to

cause injury.

Negligence is conduct that creates an unreasonable risk of harm.

Strict liability is not based on any fault of a person; but rather, on the nature

of the activity.

I. NEGLIGENCE

A person acts negligently if the person does not exercise reasonable care under

all the circumstances. Third Restatement, Section 3. Moreover, the general rule

is that a person is under a duty to all others at all times to exercise reasonable

care for the safety of the others’ person and property. Third Restatement,

Section 7.

*** Chapter Outcome ***

List and describe the three required elements of an action for negligence.

A plainti2 alleging negligence has to prove 7ve elements:

1. Duty of care: that a legal duty required the defendant to conform to the

standard of conduct established for the protection of others;

2. Breach of duty: that the defendant failed to exercise reasonable care;

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

3. Factual cause: that the defendant’s failure to exercise reasonable care in

fact caused the harm the plainti2 sustained;

4. Harm: that the harm sustained is of a type protected against negligent

conduct; and

5. Scope of liability: that the harm sustained is within the “scope of liability,”

which historically has been referred to as “proximate cause.” Third Restatement,

Section 6, comments.

A. BREACH OF DUTY OF CARE

While the law does not obligate us to help each other (except in special

circumstances) we are obligated to avoid doing harm or putting others at

unreasonable risk of harm.

Negligence is conduct that creates an unreasonable risk of harm. (1) the

Reasonable Person Standard

The degree of care expected of a reasonable person in similar circumstances.

Age, physical disability, skill or knowledge, and emergencies may affect the level

of conduct expected of a reasonable person.

*** Chapter Outcome ***

Explain the duty of care that is imposed upon a) adults, b) children,

c) persons with a physical disability, d) persons with a mental de7ciency,

e) persons with superior knowledge, and f) persons acting in an emergency.

Children — usually held to a standard of conduct based on their own age and

experience, except when children engage in an adult activity like Cying a plane

or driving a boat. Some States modify this individualized test by holding that

under a minimum age, most commonly the age of seven, a child is incapable of

committing a negligent act. The Third Restatement further provides that a child

less than 7ve years of age is incapable of negligence.

Physical Disability – A person who is ill or physically disabled must conform to

the standard of conduct of a reasonable person under like disability.

Mental Disability –A person’s mental or emotional disability is not considered

in determining whether conduct is negligent unless the person is a child. The

defendant is held to the standard of conduct of a reasonable person who is not

mentally or emotionally disabled, even though the defendant is, in fact,

incapable of conforming to the standard. When a person’s intoxication is

voluntary, it is not considered as an excuse for conduct that is otherwise lacking

in reasonable care.

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

established by legislation or administrative regulation, with civil liability imposed

on violators.

NOTE: See Figure 8-1.

Duty to Act

Except in special circumstances, a person who has not created risk of harm to

others is ordinarily not required to aid another in peril. A person does have a

duty to act if:

• the relationship between the parties creates an obligation

• one party has negligently placed the other in a position of potential harm

• a person’s conduct, whether tortious or innocent, has injured someone

else and left that person helpless and in danger of further harm

Most States have enacted Good Samaritan statutes to encourage voluntary

emergency care. These statutes typically limit or disallow liability for some

rescuers under specified circumstances. But, a person who voluntarily helps

someone in need is liable if her failure to exercise reasonable care increases the

risk of harm, causes harm, or leaves the other in a worse position.

CASE 8-1

SOLDANO v. O’DANIELS

California Court of Appeal, Fifth District, 1983

141 Cal.App.3d 443, 190 Cal.Rptr. 310

http://scholar.google.com/scholar_case?case=636498466656533477&q=190+Cal.Rptr.+310&hl=en&as_sdt=2,34

Andreen, J.

Does a business establishment incur liability for wrongful death if it denies use of its telephone

to a good samaritan who explains an emergency situation occurring without and wishes to call

the police?

This appeal follows a judgment of dismissal of the second cause of action of a complaint for

wrongful death upon a motion for summary judgment. The motion was supported only by a

declaration of defense counsel. Both briefs on appeal adopt the defense averments:

This action arises out of a shooting death occurring on August 9, 1977. Plaintiff’s father

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

Plaintiff alleges that on the date of the shooting, a patron of Happy Jack’s Saloon came into

the Circle Inn and informed a Circle Inn employee that a man had been threatened at Happy

Jack’s. He requested the employee either call the police or allow him to use the Circle Inn phone

to call the police. That employee allegedly refused to call the police and allegedly refused to

allow the patron to use the phone to make his own call. Plaintiff alleges that the actions of the

Circle Inn employee were a breach of the legal duty that the Circle Inn owed to the decedent.

We were advised at oral argument that the employee was the defendant’s bartender. The state

of the record is unsatisfactory in that it does not disclose the physical location of the telephone—

whether on the bar, in a private office behind a closed door or elsewhere. The only factual matter

There is a distinction, well rooted in the common law, between action and nonaction.

[Citation.] It has found its way into the prestigious Restatement Second of Torts (hereafter cited

as “Restatement”), which provides in section 314:

The fact that the actor realizes or should realize that action on his part is necessary for

another’s aid or protection does not of itself impose upon him a duty to take such action.

* * *

Section 314A of the Restatement lists other special relationships which create a duty to

render aid, such as that of a common carrier to its passengers, an innkeeper to his guest,

possessors of land who hold it open to the public, or one who has a custodial relationship to

another. A duty may be created by an undertaking to give assistance. [Citation.]

Here there was no special relationship between the defendant and the deceased. It would be

* * *

We turn now to the concept of duty in a tort case. The [California] Supreme Court has

identified certain factors to be considered in determining whether a duty is owed to third persons.

These factors include:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of the connection between the defendant’s conduct and the injury

suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

harm, the extent of the burden to the defendant and consequences to the community of

imposing a duty to exercise care with resulting liability for breach, and the availability, cost,

and prevalence of insurance for the risk involved. [Citation.]

We examine those factors in reference to this case. (1) The harm to the decedent was

abundantly foreseeable; it was imminent. The employee was expressly told that a man had been

threatened. The employee was a bartender. As such he knew it is foreseeable that some people

who drink alcohol in the milieu of a bar setting are prone to violence. (2) The certainty of

decedent’s injury is undisputed. (3) There is arguably a close connection between the employee’s

conduct and the injury: the patron wanted to use the phone to summon the police to intervene.

The employee’s refusal to allow the use of the phone prevented this anticipated intervention. If

permitted to go to trial, the plaintiff may be able to show that the probable response time of the

police would have been shorter than the time between the prohibited telephone call and the fatal

* * *

We acknowledge that defendant contracted for the use of his telephone, and its use is a

species of property. But if it exists in a public place as defined above, there is no privacy or

ownership interest in it such that the owner should be permitted to interfere with a good faith

attempt to use it by a third person to come to the aid of another.

Duties of Possessors of Land

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

People who occupy land with the intent to control its use have a right to use it

for their own benefit and enjoyment, but in a reasonable manner. They cannot

cause unreasonable risk of harm to others either on or o2 the site, though the

possessor’s level of responsibility to a person on site usually depends on

whether the person is a trespasser, a licensee, or an invitee. In about 7fteen

*** Chapter Outcome ***

Di2erentiate among the duties that possessors of land owe to trespassers, licensees, and

invitees.

Second Restatement In accordance with the historical—and still majority—

approach to the duties of possessors of land, the Second Restatement provides

for varying duties depending on the status of the entrant on the land.

A trespasser enters or remains on the land of another without

permission. The lawful possessor of the land is not liable for failure to

maintain safe conditions, but may not inCict intentional injury on a

trespasser.

A licensee is privileged to enter or remain on land only by the consent of

the lawful possessor; includes members of the household, social guests,

and salespersons calling at private homes. The possessor must warn the

licensee of any known dangerous activities and conditions which the

licensee is unlikely to discover.

Third Restatement The status-based duty rules just discussed have been

rejected by the Third Restatement, which adopts a unitary duty of reasonable

care to entrants on the land.

[Except for “Cagrant trespassers,”] a land possessor owes a duty of reasonable

care to entrants on the land with regard to:

conduct by the land possessor that creates risks to entrants on the land;

arti7cial conditions on the land that pose risks to entrants on the land;

natural conditions on the land that pose risks to entrants on the land…

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

The Third Restatement requires that a land possessor only (1) refrain from

intentional, willful, or wanton conduct that harms a Cagrant trespasser and (2)

exercise reasonable care on behalf of Cagrant trespassers who are imperiled and

helpless.

CASE 8-2

LOVE v. HARDEE’S FOOD SYSTEMS, INC.

Court of Appeals of Missouri, Eastern District, Division Two, 2000 16 S.W.3d 739

http://scholar.google.com/scholar_case?case=12304910341505965816&hl=en&as_sdt=2&as_= 1&oi=scholarr

Crane, J.

At about 3:15 P.M. on November 15, 1995, plaintiff, Jason Love, and his mother, Billye Ann

Love, went to the Hardee’s Restaurant in Arnold, Missouri, which is owned by defendant,

Hardee’s Food Systems, Inc. There were no other customers in the restaurant between 3:00 P.M.

and 4:00 P.M., but two or three workmen were in the back doing construction. The workmen

reported that they did not use the restroom and did not see anyone use the restroom. After eating

his lunch, plaintiff, who was wearing rubber-soled boat shoes, went to use the restroom. He

opened the restroom door, took one step in, and, upon taking his second step, slipped on water on

the restroom floor. Plaintiff fell backwards, hit his head, and felt a shooting pain down his right

leg. He found himself lying in an area of dirty water, which soaked his clothes. There were no

barricades, warning cones, or anything else that would either restrict access to the bathroom or

warn of the danger.

Plaintiff crawled up to the sink to pull himself up and made his way back to the table and told

his mother that his back and leg were “hurting pretty bad.” His mother reported the fall to

another employee. Plaintiff’s mother went back to the men’s restroom and looked at the water on

the floor. She observed that the water was dirty. The restaurant supervisor came out and

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

It was also a store policy that whenever employees cleaned the tables, they would check the

restroom. The restrooms were used by customers and employees. If an employee had to use the

restroom, then that employee was also supposed to check the restroom. The restaurant supervisor

did not ask if any employees had been in the restroom, or if they had checked it in the hour prior

to the accident, and did not know if the restroom was actually inspected or cleaned at 3:00 P.M.

The restaurant had shift inspection checklists on which the manager would report on the

cleanliness of the restrooms and whether the floors were clean and dry. However, the checklists

for November 15 were thrown away. * * *

Plaintiff subsequently filed the underlying lawsuit against defendant to recover damages for

negligence. The jury returned a verdict in plaintiff’s favor in the amount of $125,000. * * *

* * *

In order to have made a submissible case, plaintiff had to show that defendant knew or, by

using ordinary care, could have known of the dangerous condition and failed to use ordinary care

to remove it, barricade it, or warn of it, and plaintiff sustained damage as a direct result of such

failure. [Citation.]

“In order to establish constructive notice, the condition must have existed for a sufficient

length of time or the facts must be such that the defendant should have reasonably known of its

presence.” [Citation.] [Prior] cases * * * placed great emphasis on the length of time the

dangerous condition had been present and held that times of 20 or 30 minutes, absent proof of

other circumstances, were insufficient to establish constructive notice as a matter of law.

[Citations.]

* * *

Defendant’s liability is predicated on the foreseeability of the risk and the reasonableness of

the care taken, which is a question of fact to be determined by the totality of the circumstances,

including the nature of the restaurant’s business and the method of its operation. [Citations.]

In this case the accident took place in the restaurant’s restroom which is provided for the use

of employees and customers. The cause of the accident was water, which is provided in the

restroom. The restaurant owner could reasonably foresee that anyone using the restroom,

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

evidence that no other customers were in the store to use the restroom after 3:00 P.M. and the

workmen on the site advised that they had not used the restroom.

In addition, plaintiff adduced evidence from which the jury could have found that defendants’

employees had the opportunity to observe the hazard. The restroom was to be used by the

employees and was supposed to be checked by them when they used it; employees cleaning

tables were supposed to check the restroom when they cleaned the tables; and a maintenance

man was supposed to check and clean the restroom every hour.

There was evidence from which the jury could have inferred that the maintenance man

charged with cleaning the restroom every hour did not clean the restroom at 3:00 P.M. as

Res Ipsa Loquitur

Meaning “the thing speaks for itself,” this rule applies “when the accident

causing the plainti2’s physical harm is a type of accident that ordinarily happens

as a result of the negligence of a class of actors of which the defendant is the

relevant member.” This rule permits the jury to infer both negligent conduct and

causation from the mere occurrence of certain types of events. Other possible

causes of the event must have been eliminated.

B. FACTUAL CAUSE

Liability for the negligent conduct requires not only that the conduct actually

caused injury, but also that it was the cause of the injury.

Causation in Fact

A widely applied test for causation in fact is the “but-for” test: A person’s

conduct is a cause of an event if the event would not have occurred but-for (i.e.,

in the absence of) the person’s negligent conduct.

When two or more forces are actively operating and each is suHcient to bring

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 

Scope of Liability (Proximate Cause)

The legal rule that limits a person’s liability to the consequences that are closely

connected with the negligent conduct. This means that a person may have acted

negligently and actually caused injury, but she will not be held liable for injuries

that have been brought about too indirectly.