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■Most states that have adopted the comparative negligence rule have abolished assumption of risk
as a total bar to recovery in tort lawsuits. Instead, assumption of risk is treated as another factor
for the trier of fact (jury or judge) to consider when making a comparative negligence allocation
of liability. Thus, in some cases where assumption of risk fits the facts, the defendant’s negligence
may nonetheless be a partial cause of the injury. In such a case, an apportionment of fault
between the plaintiff and defendant will be made. “Thus, there is no arbitrary bar to recovery
and no sweeping exemption from duty accorded a defendant.”
F. Answers to Case Example Questions
5-1-1. What changes in the facts might have resulted in the Gillespies being liable?
If there had been similar incidents of sexual assault by their son and if the plaintiff had showed
5-2-1. What more would the plaintiff need to prove to establish that the defendant in this case
breached a duty?
The plaintiff needs to prove carelessness on the part of the hotel for failure to maintain
floors in its building in a safe condition. The plaintiff also needs to prove that the duty to
5-5-1. What is meant by constructive notice, as used in the fourth paragraph?
Constructive notice means that the defendant had knowledge of the dangerous conditions or
5-5-2. We are told that Montes had two or three drinks the afternoon of the accident. What
effect do you think that should have on the outcome of the case?
If the resort had constructive notice of the conditions, they would still be liable if the Montes
5-5-3. What does the term “active vigilance,” used by the court, in the penultimate paragraph,
mean?
5-7-1. What change of facts would be necessary to make Mrs. Steinberg an invitee at the time
of her injury?
5-7-2. If Mrs. Steinberg was an invitee, what duty would the hotel have owed to her?
5-8-1. Why do you think the duty imposed on businesses vis-à-vis trespassers is significantly
less than that imposed on invitees?
The trespassers do not often have the objective to visit a business establishment for the pur-
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5-9. How would the liability of the Totahs for the accident have been different if Callen-
der had been a camper at the campground and had been within the campground’s
beach area at the time of his diving accident? Why would the liability have been dif-
ferent?
If the plaintiff had been a camper his legal status would have been that of an invitee. As an
invitee, he would be owed, by the Totahs, a duty of reasonable care that would include a duty
The liability would be different in that defendant would be liable to the plaintiff for his
5-11-1. Why do you think the law requires exclusive control by the defendant for res ipsa to
apply?
The law requires exclusive control by the defendant for res ipsa to apply because the facts of
5-12-1. What is the standard of care an adult must exercise for his own safety? How does that
differ from the standard of care a child is expected to exercise?
The reasonable standard is that an adult is charged with using reasonable care for his/her own
5-12-2. The judge noted that the restaurant was self-service. What impact does this have on
Bruce’s negligence?
Self-service implies that patrons will have to leave their seats or tables to serve themselves;
5-13-1. What class of persons were the pool maintenance laws designed to protect? Why do these
people need protection?
The laws were intended to protect all people who use the pool, but particularly those who
5-13-2. How did the plaintiff prove proximate cause in this case?
Had the filtration system worked properly and had proper rescue equipment been available,
Cotton’s friends could have located him in the pool earlier and rescued him quicker. Instead
5-15-1. Do you agree with the court’s determination that Taco Bell should provide reasonable
assistance to Baker even though Taco Bell was not responsible for his illness? Why or
why not?
Reasonable assistance should have been offered to Baker especially after his second fall to the
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5-15-2. What is the public policy underlying the court’s decision?
5-16-1. Why in Case Example 5-14 did the proprietor owe a duty to aid a customer in distress
while in this case the proprietor was relieved of that duty?
In the previous case no one had come to the aid of the customer or was not being cared for
by anyone who appeared to be competent. In this case the employee of the motel saw two
5-17-1. Under what circumstance might the restaurant have been liable?
5-17-2. Why do you think the court does not require restaurants to train their employees in
medical procedures?
The court does not require restaurants to train their employees in medical procedures because
5-18-1. Identify the elements of assumption of risk and state the particular fact(s) in Ball that
satisfy each element.
For assumption of risk to apply a defendant must show: (1) the plaintiff voluntarily engaged
in conduct known by the plaintiff to present a risk of injury, and (2) plaintiff was injured as a
result of that risk. In this case the plaintiff was informed of the power failure and could easily
5-19-1. What facts did the court rely upon on in making its determination that the plaintiff
assumed the risk of any inherent danger?
The court relied on the fact that the patron had been a guest at the dance club on prior
5-19-2. Under what different circumstances might the court have found that the plaintiff did
not assume the risk?
5-20-1. What was the particular risk of injury that the plaintiff assumed in this case?
5-20-2. The plaintiff claimed the hotel owed him a duty to provide either a protective screen or
a uniformed guard on the balcony. Do you agree? Why or why not?
No, we do not agree. The hotel owes a duty of reasonable care to its guests. Adults can com-
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Principles of Negligence ■53
Key Terms
Assumption of risk Accepted the likelihood that
Comparative negligence The rule followed in some
Independent contractor One who contracts to
do work for another, but who maintains control of
Proximate cause The direct and immediate fore-
Res ipsa loquitur Means the thing speaks for
Trespasser One who enters a plan without permis-
G. Answers to End-of-Chapter Questions
❊Review Questions
1. What does negligence mean?
2. Who or what is the reasonable person?
The reasonable person is a hypothetical person who always acts reasonably; it is a standard
3. Identify the four elements of a negligence case.
To prove negligence a plaintiff must establish: (1) existence of a duty owed by the defendant
4. Which two elements of a negligence case must have a cause-and-effect relationship?
5. What is res ipsa loquitur?
The term translates as “the thing speaks for itself.” The legal doctrine of res ipsa loquitur aids
6. If the assumption of risk doctrine applies in a case, who wins—the plaintiff or the defendant?
The defendant wins: the doctrine provides that where a plaintiff knowingly engages in con-
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7. What is the difference between comparative negligence and contributory negligence?
Which doctrine have most states adopted?
Most states have adopted the doctrine of contributory negligence. Both doctrines apply in
circumstances where the plaintiff as well as the defendant, was negligent, leading to the injury.
With comparative negligence, the trier of fact allocates the liability by percentage between the
plaintiff and defendant. The plaintiff must absorb that share of the losses equal to the percent-
8. What duty of care is owed by innkeepers to guests who are children? Does the duty dif-
fer at all from the duty owed to adults? If so, how does it differ?
Innkeepers owe the duty to all guests to exercise reasonable care to protect them from injury.
9. What is an attractive nuisance?
An attractive nuisance is a potentially dangerous object or condition of exceptional interest to
young people, such as a swimming pool, a large empty box, a snow pile suitable for sliding
10. What differentiates negligence per se from ordinary negligence?
Negligence per se occurs when a defendant violates a statute intended to protect the public’s
11. What is the difference between an invitee, a licensee, and a trespasser?
An invitee is someone who comes to an establishment for the purpose for which the busi-
The greatest degree of care is owed to an invitee and the least is owed to a trespasser.
❊Discussion Questions
1. In which of the following cases would res ipsa loquitur apply? Why?
A. The plaintiff was driving his car on hotel property and hit an obstacle in the road.
B. The plaintiff was sitting at the desk in her hotel room writing postcards when the ceiling light
fixture fell on her head and injured her.
Res ipsa loquitur would apply here. Light fixtures do not normally fall unless someone is
negligent. The hotel is responsible for its maintenance and has control of it. This situation
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C. The plaintiff tripped in a restaurant.
Res ipsa loquitur would not apply here since the cause of the trip is unknown. The cause
2. You are a manager at a restaurant. Your restaurant is sued by a customer who fell while
at your establishment. What does the element of proximate cause require the plaintiff
to establish? How might you dispute proximate cause?
Proximate cause requires the plaintiff to prove that there was a direct connection between a
3. The plaintiff was a guest at a hotel with a golf course. While playing a round of golf he
tripped on a large hole in the ground and was injured.
A. Did the plaintiff assume the risk? Why or why not?
Assumption of risk does not apply. A golfer assumes the normal risks of the game but does
B. What is the effect of the assumption of risk doctrine in a state that has adopted the rule of
comparative negligence? Why?
Some states have adopted the doctrine of comparative negligence and have abolished
assumption of the risk as complete bar to recovery. In these states, assumption of risk
4. Under what circumstances does a hotel or restaurant have strict liability? What can a
business do to protect itself against this type of liability?
Strict liability applies where a defendant engages in ultra hazardous activity, such as using ex-
5. What is the significance of the doctrine of respondeat superior to a hotel or restaurant?
This doctrine holds an employer liable for the negligent acts of its employees in the further-
ance of their jobs. Thus, if a waitress negligently spills hot coffee on a patron who is burned
6. How might the duty of care owed by a hotel or restaurant differ depending on whether
the plaintiff is an invitee, a licensee, or a trespasser? How might the outcome of a case
vary depending on the status of the plaintiff? What is the rationale for such different
results?
The highest duty of care is owed to an invitee. The hotel or restaurant owed such a person the
duty to inspect the premises for dangerous conditions, repair any such conditions, and warn
of their risks. The duty owed to a licensee is to refrain from liability from willfully or wantonly
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❊Application Questions
1. The plaintiff, while about to descend a flight of stairs from a second-story restau-
rant, was engaged in conversation with a companion and failed to survey the steps.
An obstacle on the second step caused her to slip and fall, resulting in injuries. The
state in which the restaurant was located has adopted the rule of comparative
negligence. What impact will her negligence have on her lawsuit against the restau-
rant? Explain fully.
Since the state with jurisdiction follows the comparative negligence rule, plaintiff’s negli-
gence will not defeat her lawsuit. Instead, the jury (or judge, in a bench trial) will allocate
2. Assume in Question 1 that the applicable state rule was contributory negligence rather
than comparative negligence. What impact would that have on the outcome of the case?
3. A customer at a pizza parlor ate a piece of pizza with a tack in it. Did the customer as-
sume the risk of the tack’s presence? Why or why not? What other negligence doctrine(s)
might apply?
The customer has not assumed the risk. A restaurant owes its patrons a duty to serve only food
4. The Drumlin Hotel has a pond on its property. During the winter the pond freezes and
neighborhood children come to play on it. One day in late March the ice was thin and
a child fell through and suffered from exposure and frostbite. Will the hotel be liable
for the child’s injuries? Why or why not? What additional information do you need to
decide this case?
Discuss the issues thoroughly.
The frozen pond is an attractive nuisance. The hotel is obligated to take precautions to pre-
5. At a bowling banquet one of the diners started to choke on a steak. He was assisted
to the bathroom by several of his bowling friends and in the process passed by you as
manager. You do not assist him personally, but you do call the police and an ambulance.
They respond in three minutes. The choking diner is taken to a hospital, where he dies.
His wife is now suing your restaurant for $1 million. What defenses are available to the
restaurant?
The law does not require that the restaurant come to the aid of the choking victim. In addi-
tion, many states have passed laws specifically stating that restaurants are not liable for failing
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6. Identify the legal status (invitee, licensee, or trespasser) of each of the following.
A. A hotel guest.
B. A person who comes to the hotel to meet a friend who is a guest of the hotel.
C. A person who enters the hotel restaurant only to use the bathroom.
D. A person who enters the hotel to attend a meeting being held in a room rented for the day by
her employer.
E. A person who enters the hotel to buy a gift in the lobby gift shop.
F. A person who enters the hotel to take a shortcut through the building.
G. A person who enters the hotel to rob a guest.
H. A patron of a restaurant who left his coat and returns the next day to retrieve it.
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