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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.
