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Chapter 7
Negligence and Strict Liability
See Separate Lecture Outline System
INTRODUCTION
This chapter reviews the law concerning the tort of negligence, which, unlike the torts discussed in the preceding
chapter, is an unintentional tort. A part of doing business is the risk of being involved in a lawsuit. An ever-increasing business
operating cost is the premium to obtain liability insurance to pay an adverse judgment in a suit. Many of these suits involve the
torts outlined in the previous chapter and this chapter. In fact, in the United States today, negligence is the dominant cause of
action for accidental injuries.
ADDITIONAL RESOURCES —
VIDEO SUPPLEMENTS
The following video supplements relate to topics discussed in this chapter—
144 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
PowerPoint Slides
To highlight some of this chapter’s key points, you might use the Lecture Review PowerPoint slides compiled for
Chapter 4.
Business Law Digital Video Library
The Business Law Digital Video Library at www.cengage.com/blaw/dvl offers a variety of videos for group or
individual review. Clips on topics covered in this chapter include the following.
• Drama of the Law
Negligence and Assumption of Risk—Stores have a duty to keep their premises safe for customers. When
CHAPTER OUTLINE
I. Negligence
An act that could be an intentional tort if not for a lack of intent may constitute negligence. Under negligence theory, a
tortfeasor neither wishes to bring about the consequences of an act nor believes that they will occur but his or her
conduct creates a risk of the consequences. The risk must be foreseeable so that a reasonable person would anticipate
it and guard against it, depending on the nature of the possible harm. A very slight risk of a dangerous explosion might
be unreasonable; a distinct possibility of burning one’s fingers on a stove might be reasonable. Negligence involves four
elements:
• Duty of care.
• Breach of the duty.
• Legally recognizable injury.
• Causation (the breach must have caused the injury).
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 145
close the town’s beaches. If the chief keeps the beaches open and a swimmer is injured or killed because the Brody
failed to warn swimmers about the potential shark danger, has Brody committed the tort of negligence? Explain. The
quired act. Given that Chief Brody is a police officer and therefore has a duty to protect the public, his failure to warn
1. The Reasonable Person Standard
Duty is measured by a standard of reasonableness. The measure is objective—how would a reasonable
person act in the same circumstances? The answer defines the duty: a reasonable person would exercise
reasonable care.
2. The Duty of Landowners
Business firms that invite persons onto their premises usually have a duty to exercise reasonable care to
CASE SYNOPSIS—
Case 7.1: McClain v. Octagon Plaza, LLC
Ted and Wanda Charanian own Octagon Plaza, LLC, which owns and manages a shopping center in Valencia,
California. Kelly McClain leased space in the center to operate “A+ Teaching Supplies.” The lease described the space as
“approximately 2,624 square feet.” Rent of $1.45 per square foot—$3,804 per month—and McClain’s share of the
common expenses were based on this description. McClain claimed that the Charanians knew that the description was
materially inaccurate. At trial on the issue in a California state court, the Charanians prevailed. McClain appealed.
A state intermediate appellate court reversed with respect to McClain’s claim for misrepresentation. “Generally,
the elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage. . . . The tort of negligent misrepresentation does not require scienter or
intent to defraud.”
…………………………………………………………..……………………………………..….…………………………
Notes and Questions
was the specific duty that the landlord in this case owed to the tenant? The landlord owed the tenant a duty to provide
center’s common expenses were based on this measure. If the landlord had encouraged the tenant to measure the
space herself, would the outcome have been different? Probably not. This detail might have only underscored the
landlord’s deception. If the tenant had measured the space and calculated the size, would this have changed the
146 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
result? Possibly. But if the landlord had known the true size and remained silent in the face of the tenant’s error, this
ANSWER TO “THE ETHICAL DIMENSION” QUESTION IN CASE 7.1
At what point do the misrepresentations about the size of the leased space become unethical—at 1 percent, 2
percent, or more? Misrepresenting a material fact to any extent, great or small, can be illegal, and the
misrepresentation can be unethical at the same point. Thus any “size” misrepresentation of leased space can be
unethical.
ANSWER TO “THE LEGAL ENVIRONMENT DIMENSION”
QUESTION IN CASE 7.1
What defense could the shopping center owners raise to counter McClain’s claim? The shopping center owners’
best defense in these circumstances might be to claim mistake. They might assert, for example, that the differences
between the actual and purported sizes of the center and the leased space were due to mathematical errors, not
negligence.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent cases involving the duty of business owners to warn customers of dangerous conditions include the
following.
• Cases in which it was held that there was no duty to warn against obvious and other observable conditions include
Foley v. Michel Tire Co., 183 F.Supp.2d 934 (W.D.Ky. 2002) (jack protruding from beneath a car); Pinero v. Rite Aid of
New York, Inc., 294 A.D.2d 251, 743 N.Y.S.2d 21 (1 Dept. 2002) (wagon in a grocery store aisle); Calderon v. Nyack
Hospital, 293 A.D.2d 562, 742 N.Y.S.2d 65 (2 Dept. 2002) (parking lot gate); and Stemberga v. Term Security Corp., 292
A.D.2d 372, 738 N.Y.S.2d 76 (2 Dept. 2002) (ottoman in a restaurant).
include Wade v. Findlay Management, Inc., 253 Ga.App. 688, 560 S.E.2d 283 (2002) (patron assaulted on a playground
at the front of a restaurant); Paragon Family Restaurant v. Bartolini, 769 N.E.2d 609 (Ind.App. 2002) (patron attacked in
a parking lot); and Vail v. Masker, 812 So.2d 807 (La.App. 4.Cir. 2002) (patron attacked during the patron’s pursuit of a
thief).
station); and L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Co., 75 S.W.3d 247 (Mo. 2002) (patron sexually
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 147
assaulted in a mall).
3. The Duty of Professionals
4. No Duty to Rescue
A person who fails to come to the aid of a stranger is not considered negligent.
B. CAUSATION
The breach of the duty of care must have caused the harm for which recovery is sought. There must be (1)
causation in fact and (2) the act must be the proximate cause of the injury. If an injury would not have occurred
without the breach, there is causation in fact. Causation in fact can usually be determined by the but-for test:
But for the wrongful act, the injury would not have occurred. Proximate cause is a question not of fact but of law
and policy: is the connection between an act and an injury strong enough to justify imposing liability?
CASE SYNOPSIS—
Case 7.2: Palsgraf v. Long Island Railroad Co.
As a man carrying a package tried to board a moving train from a crowded station platform, railroad employees
on the train and the platform tried to help him. The man dropped his package, which contained fireworks, and it
exploded. The explosion caused scales on the platform to fall on Mrs. Palsgraf, injuring her. She sued the railroad.
The court found that the railroad employees were negligent in their conduct toward Palsgraf, who was awarded
damages. The railroad appealed.
The question before the court was: does the duty of care extend only to those who may be injured as a result of
a foreseeable risk, or does it extend also to a person who is outside the zone of danger and whose injury could not
reasonably have been foreseen?
to the eye of ordinary vigilance . . . with reference to her.” The court stated the principle as “The risk reasonably to
toward the man with the package, but it was not a wrong in relation to Palsgraf who was standing far away.
…………………………………………………………..…………………………………………………………………
Notes and Questions
What economic reasons are there for not awarding damages to Palsgraf? Who should bear the loss in this and
similar situations—the business or the injured party? What is a “zone of danger”?
Is the question underlying a determination of proximate cause one of social policy or economic policy? That is,
are courts (and plaintiffs) often looking only for someone to pay for an injury or damage and thus assess liability on
the basis of who can most easily pay? If so, does this mean that the individual who has no assets and no insurance is
likely to avoid liability?
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 149
The Long Island Railroad carried millions of passengers each year, and many of those passengers brought packages
onto the train. Should the New York Court of Appeals that the harm to Mrs. Palsgraf was not foreseeable? Why or why
not? Perhaps in retrospect it might be concluded that among all of the railroad’s passengers, one might try to bring
fireworks onto a train and that those fireworks might drop to the tracks and explode causing injury to someone on the
platform. It seems fair to say, however, that the injury to Mrs. Palsgraf was a very low-probability event.
without a remedy, even though she was in no way responsible for her injuries. What might the consequences for tort
litigation have been if the New York Court of Appeals had ruled in favor of Mrs. Palsgraf? The consequences would very
likely be a substantial increase in the potential scope of liability for negligence. Businesses such as the Long Island
Railroad could be held liable not only for the reasonably foreseeable consequences of their actions but also for a range
of very low-probability events.
it be limited to reduce the frequency and amounts of recovery? Why? The application of the concept of proximate
cause should be limited, because these and other tort suits are crippling business and inhibiting the economy for the
should be expanded, because the victims in negligent events often suffer horribly, with sometimes little, if any, other
ANSWER TO “THE GLOBAL DIMENSION” QUESTION IN CASE 7.2
What would be the advantages and disadvantages of a universal principle of proximate cause applied everywhere
by all courts in all relevant cases? Discuss. The advantages might include those underlying common law systems
generally: predictability and stability, which can improve the climate for economic development and reinforce the
notion of personal accountability. The disadvantages might include a lack of adaptability to local circumstances,
particularly cultural differences, economic disparities, political realities, and personal expectations.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent cases considering whether the existence of a duty of care depends on whether the injury to the particular
victim was foreseeable include the following.
• Cases in which Palsgraf was discussed in detail include Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (Tex. 1999)
(motorist sexually assaulted in a parking garage by a police officer).
Dist. 2001) (customer wounded by a shot fired outside a grocery store); and Gritzner v. Michael R., 235 Wis.2d 781, 611
N.W.2d 906 (2000) (a duty of care exists whenever it is foreseeable that an act or omission to act might cause harm to
some other person).
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C. THE INJURY REQUIREMENT AND DAMAGES
Without an injury (loss, harm, wrong, or invasion of a protected interest), there is nothing to recover. The
purpose of damages is to compensate injured parties. To discourage especially reprehensible behavior, however,
punitive damages may be awarded.
II. Defenses to Negligence
Besides the defenses noted below, defendants can assert that plaintiffs failed to prove one or more of the required
elements for negligence
ANSWER TO CRITICAL ANALYSIS QUESTION IN THE FEATURE—
INSIGHT INTO ETHICS
A. ASSUMPTION OF RISK
Assumption of risk requires that the injured person knew of the risk and voluntarily assumed it.
1. Assumption of Risk Can Be Express or Implied
The risk can be assumed by express agreement or implied by the plaintiff’s knowledge of the risk and
CASE SYNOPSIS—
Case 7.3: Pfenning v. Lineman
Whitey’s 31 Club sponsored a golf scramble at the Elks’ golf course in Marion, Indiana. Sixteen-year-old Cassie
Pfenning drove a beverage cart with Christie Edwards, a Whitey’s employee, dispensing drinks. A ball hit by Joseph
Lineman struck Pfenning in the face, causing injuries to her mouth, jaw, and teeth. She filed a suit in an Indiana state
court against Lineman and others, alleging negligence. The court issued a judgment in the defendants’ favor. Pfenning
appealed.
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 151
A state intermediate appellate court affirmed. “There is no duty from one participant in a sports activity to another
to prevent injury resulting from an inherent risk of the sport. . . . Pfenning’s presence on the golf course was due to the
fact there was a golf scramble; she had agreed to function as a driver or rider in a beverage cart provided for the golf
scramble; and she performed this function and assisted in providing beverages to players in the golf scramble. If not for
the golf scramble, Pfenning would not have been on the golf course the day of the incident. Although not a player
herself, she clearly was part of the sporting event.”
…………………………………………………………..……………………………………………………………….…..
Notes and Questions
Are there any sports events at which a player, spectator, or other participant might not be held to have assumed
the risk of an injury? Are there injuries that a participant would likely not have assumed the risk of? There may not be a
sports event at which a participant could avoid an assumption-of-risk defense. There are injuries, however, for which a
participant could avoid such a defense. These include any injuries caused by risks that are greater than, or different
from, the risks normally associated with the activity.
How might the outcome in this case have been avoided? First, the factual consequence—the plaintiff’s injury—
might have been avoided if the plaintiff had been paying closer attention to the actions of the players. Second, the cost
of that consequence might have been distributed differently if the court had ruled in favor of the plaintiff. This ruling
might have been based on the reasoning that the expense to injured individuals would be less if it were spread among
What is the basis underlying the defense of assumption of risk, and how does that basis support the court’s
decision in this case? The basis for the defense of assumption of risk is knowledge and consent—knowing a risk, a party
voluntarily consents to it. In this case, the plaintiff, after more than three hours at the event, was “impliedly” aware of
the risk of an errant ball and assumed that risk by continuing to drive the cart until she was hit by a ball and injured.
Had the plaintiff prevailed, how might the venues for golf scrambles be different today? Fences and backstops
might be more common, and spectators and other participants, including vendors, might be relegated to seating
distanced from the tees, fairways, and greens. It is also possible that golf scrambles would become less common and
ANSWERS TO QUESTIONS AT THE END OF CASE 7.3
1. Should the courts distinguish between different levels of participation in a sporting event when determining
liability? Explain. A dissenting judge in this case suggested that it would be fairer if the courts made such distinctions
are different for those at different levels of participation. After all, commented the judge, a batter playing in a baseball
game may well be said to assumed the risk of getting hit with a wild pitch, but a fan watching the game from the stands
would not assume that risk—but may have assumed the risk of being hit by a foul ball that goes into the stands.
According to the dissenting judge, Pfenning was not playing golf at the Elks Club when she was injured and should not
2. Suppose that Pfenning had been riding in the beverage cart with her grandfather when she was struck by the golf
152 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
ball. In that situation, would the outcome of this case have been any different? Why or why not? Very likely, no.
2. When Courts Do Not Apply Assumption of Risk
The assumption of risk doctrine does not apply in emergency situations or when a statute protects a class of
people from specific harm and a member of the class is injured by that harm.
1. “Pure” Comparative Negligence States
A judge or jury assigns a percentage of fault to each responsible party and apportions damages accordingly.
2. Modified Comparative Fault States
Under a “50 percent” rule, a plaintiff recovers nothing if he or she is determined to have been more than 50
percent at fault. Under a “51 percent” rule, a plaintiff recovers nothing if he or she is determined to have
been more than half (i.e., 51 percent or more) at fault.
ANSWER TO VIDEO QUESTION LTR. C
Suppose that Chief Brody goes against the mayor’s instructions and warns swimmers to stay off the beach.
Nevertheless, several swimmers do not heed his warning and are injured as a result. What defense or defenses could
Brody raise under these circumstances if he is sued for negligence? Chief Brody can raise assumption of the risk and
comparative (or contributory) negligence as defenses if he is sued for negligence. Assumption of the risk requires that
the defendant knew about the risk and voluntarily assumed it. Because the swimmers had been told of the risk and
went into the water anyway, Chief Brody has met both elements of this defense. In addition, all individuals are
III. Special Negligence Doctrines and Statutes
A. RES IPSA LOQUIRUR
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 153
Negligence may be inferred (and a defendant must prove that he or she was not negligent) if the event causing
damage or injury is one that ordinarily does not occur in the absence of negligence—train derailments, falling
elevators, and so on. It must be caused by something within the exclusive control of the defendant, and it must
not have been due to any act on the part of the injured party.
B. NEGLIGENCE PER SE
Negligence per se may occur if an individual violates a statute providing for a criminal penalty and that violation
causes another to be injured. The statute must clearly set out the expected standard of conduct, when and
where it is expected, and of whom it is expected, and have been designed to prevent the type of injury suffered.
ENHANCING YOUR LECTURE—
SHOULD CDA IMMUNITY EXTEND TO NEGLIGENCE?
At the age of thirteen, Julie Doe established a MySpace page. She lied about her age and said that she was
eighteen-years-old to circumvent the security procedures that MySpace has to protect minors. Peter Solis, a nineteen-
year-old male, initiated online contact with Julie, and the two eventually agreed to meet in person. When they met,
Solis sexually assaulted Julie. This led Julie’s mother to file a negligence lawsuit against MySpace, and MySpace claimed
was to encourage ISPs to take steps to protect children from harms they might encounter on the Internet.
FOR CRITICAL ANALYSIS
If providers of social networking sites, such as MySpace, are failing to protect their minor users, why should they
be immune to negligence claims?
a. Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008).
C. “DANGER INVITES RESCUE” DOCTRINE
If a person commits an act that endangers another, the person committing the act will be liable for any injuries
suffered by a third person attempting to rescue the endangered party.
154 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
D. SPECIAL NEGLIGENCE STATUTES
Most states have Good Samaritan statutes, under which persons who are aided voluntarily by others cannot sue
them for negligence. Many states have dram shop acts, under which a tavern owner or bartender may be liable
for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 155
IV. Strict Liability
Under the doctrine of strict liability, liability is imposed for reasons other than fault.
A. DEVELOPMENT OF STRICT LIABILITY
The origin of the concept in an English case is explained in the text.
C. OTHER APPLICATIONS OF STRICT LIABILITY
Strict liability is imposed on persons who keep dangerous animals for any harm inflicted by the animals. Strict
liability is also a theory applicable in product liability (Chapter 22) and bailment (Chapter 49) cases.
damages awarded in tort actions is typically much higher than the awards in contract claims. Tort claims are also
commonplace for businesses.
take preventive measures to avoid tort liability as much as possible. Remember that injured persons can bring most
tort actions against a business as well as against another person. In fact, if given a choice, plaintiffs often sue a business
awards). Moreover, sometimes businesses can be held liable for torts that individuals cannot.
A business can be exposed to negligence liability in a wide variety of instances. Liability to business invitees is a
ANSWER TO VIDEO QUESTION LTR. B
Can Chief Brody be held liable for any injuries or deaths to swimmers under the doctrine of strict liability? Why or
why not? Chief Brody cannot be held liable based on a doctrine of strict liability. Although swimming with sharks is an
abnormally dangerous activity and sharks are dangerous animals, Brody is not the owner of the sharks and is not
performing an abnormally dangerous activity.
ENHANCING YOUR LECTURE—
HOW IMPORTANT IS TORT LIABILITY?
156 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
clear example. A business that fails to warn invitees that its floor is slippery after a rainstorm, or that its parking lot is
icy after snow, may be liable to an injured customer. Indeed, business owners can be liable to for nearly any slip and
fall or other injury that occurs on business premises.
Even the hiring of employees can lead to negligence liability. For example, a business can be liable if it fails to do a
criminal background check before hiring a person to supervise a child-care center when an investigation would have
revealed that the person had previously been convicted of sexual assault. Failing to properly supervise or instruct
employees can also lead to liability for a business.
Professionals such as physicians, lawyers, engineers, and accountants have a duty to their clients to exercise the
skills, knowledge, and intelligence they profess to have or the standards expected of their profession. Providing
anything less to the client or patient is a special type of negligence called malpractice.
LIABILITY FOR THE TORTS OF EMPLOYEES AND AGENTS
A business can also be held liable for the negligence or intentional torts of its employees and agents. As explained
in Chapters 32, 33, 34, and 35, a business is liable for the torts committed by an employee who is acting within the
scope of his or her employment or an agent who is acting with the authority of the business. Therefore, if a sales agent
commits fraud while acting within the scope of her or his employment, the business will be held liable.
CHECKLIST FOR MINIMIZING BUSINESS TORT LIABILITY
1. Constantly inspect the premises and look for areas where customers or employees might trip, slide, or fall. Take
corrective action whenever you find a problem.
2. Train employee on the importance of periodic safety inspections and the procedures for reporting unsafe
conditions.
4. Check with your liability insurance company for suggestions on improving the safety of your premises and
operations.
5. Make sure that your general liability policy will adequately cover the potential exposure of the business, and
reassess your coverage annually.
6. Review the background and qualifications of individuals you are considering hiring as employees or agents.
7. Investigate and review all negligence claims promptly. Most claims can be settled at low cost without a filed
lawsuit.
TEACHING SUGGESTIONS
1. To illustrate negligence, point out that to analyze circumstances involving potential negligence students should use
a basic duty-breach-causation-injury analysis. If any of these elements is missing, there may be liability but it won’t be
stonewall to impress his friends by scaring Wendy. Wendy had a duty to drive her car in a safe manner; Wendy’s car
2. A mnemonic device to aid students in remembering the elements of a cause of action in negligence is ABCD.
A A duty of care.
B Breach of a duty of care.
C Causation (the breach of the duty of care must cause an injury).
D Damage (injury or harm).
Cyberlaw Link
Is a person who releases a “virus” into cyberspace liable in tort for any damage the virus does? Should a person be
liable if he or she spreads a virus unwittingly—by, for example, sending an infected document to another computer, or
simply leaving his or her computer “on” and connected to a broadband network through which a hacker gains access?
DISCUSSION QUESTIONS
1. What are the four elements of negligence? The four elements of negligence are (1) a duty of care owed by the
defendant to the plaintiff, (2) the defendant’s breach of that duty, (3) the plaintiff’s suffering a legally recognizable injury, and
2. In a negligence action, to qualify as a business invitee, should it be required that an individual is on the premises for the
purpose of buying something? Not necessarily. Business invitees have been held to include persons who are only window-
3. Discuss the causation element of negligence. Causation has two parts: causation in fact (the injury would not have
occurred but for the breach, or the breach was a substantial factor in bringing about the damage) and proximate cause (there
must be a connection between the breach and the harm strong enough to justify imposing liability). The test for proximate
cause is foreseeability—would a reasonable person have foreseen in the circumstances a risk of injury to the plaintiff? Other
4. What do awards of punitive damages achieve? In business, profits can be considerable. Punitive damages serve as a
5. Identify and define defenses available in an action in negligence. Assumption of risk. Voluntarily and knowingly
entering into a risky situation. The risk cannot be different from or greater than the risk ordinarily associated with an activity.
6. What is the basis underlying the defense to negligence of assumption of risk? The basis for the defense of assumption
of risk is knowledge and consent—knowing a risk, a party voluntarily consents to it.
Suppose that George, the owner of a softball park, has a duty to provide a backstop to protect spectators who want the
protection against the risk of being hit by a ball. Nikita, a visitor from Eastern Europe, sits in the stands behind the plate where
the backstop should be. Nikita has never seen softball, knows nothing about it, and does not understand the danger. During
the game, Nikita is struck and injured by a ball. Can Nikita recover from George for the injury? Nikita can recover from George
for the injury. Assumption of risk involves the question of what an injured person knew, understood, and was willing to accept.
Because Nikita knew nothing about softball, Nikita did not understand the risk and thus Nikita could not have willingly assumed
it.
Under the same circumstances, Eldon, another spectator, also sits in the stands behind the plate where the backstop
should be. Unlike Nikita, Eldon is fully aware of the risk. During the game, Eldon is struck and injured by a ball. Can Eldon
definitely recover from George for the injury? Eldon may not be able to recover from George for the injury, despite George’s
7. On what public policy grounds is strict liability imposed? Strict liability is imposed as a matter of public policy, based on
and (3) manufacturers and sellers of products are in a better position to bear the costs associated with injuries caused by their
8. What are abnormally dangerous activities? Abnormally dangerous activities are activities that involve potentially
9. Why is the theory of strict liability applied to abnormally dangerous activities? The theory of strict liability is applied to
abnormally dangerous activities because of their extreme risk.
ACTIVITY AND RESEARCH ASSIGNMENT
Break the class into small discussion groups of four or five persons. Assign each group a negligence problem (possibly
an end-of-chapter problem). Direct the students to act as jurors, decide the case, and apportion liability according to the
system of comparative negligence.
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 159
EXPLANATION OF A SELECTED FOOTNOTE IN THE TEXT
Footnote 2: At Giorgio’s Grill in Hollywood, Florida, as the manager knew, the wait staff and customers threw paper
napkins on the floor, and no one picked them up. Because drinks were often spilled, sometimes the napkins were wet. Jane
Izquierdo, a customer who knew of the napkin-throwing, slipped and fell, breaking her leg. She filed a suit in a Florida state
court against Gyroscope, Inc., the owner of Giorgio’s, alleging negligence. A jury returned a verdict in favor of the defendant,
and Izquierdo filed a motion for a new trial, which the court denied. She appealed. In Izquierdo v. Gyroscope, Inc., A state
intermediate appellate court reversed and remanded. The court emphasized that the manager admitted the wet napkins were
Should the result in this case have been different if, in all the years that the napkin-throwing tradition existed, no one
had ever fallen on them before Izquierdo? No. At the trial in this case, the manager of Giorgio’s testified that “[i]n all the years
the napkin-throwing tradition has existed, no one has ever fallen on them before Izquierdo’s fall.” The appellate court did not
find this persuasive. In fact, if someone had fallen on the napkins before Izquierdo, then she would have had additional support
for her argument that the club was negligent.
ANSWERS TO ESSAY QUESTIONS IN
STUDY GUIDE TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
BY HOLLOWELL & MILLER
1. What are the elements of a cause of action based on negligence? Duty of care. Duty is measured by an objective
2. What is meant by strict liability? In what circumstances is strict liability applied? Strict liability is liability without fault.
160 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
REVIEWING—
NEGLIGENCE AND STRICT LIABILITY
Alaina Sweeney went to Ragged Mountain Ski Resort in New Hampshire with a friend. Alaina was snow-tubing
down a snow-tube run designed exclusively for snow tubers. There were no Ragged Mountain employees present in
the snow-tube area to instruct Alaina on the proper use of a snow tube. On her fourth run down the trail, Alaina
crossed over the center line between snow-tube lanes, collided with another snow tuber, and was injured. Alaina filed
a negligence action against Ragged Mountain seeking compensation for the injuries that she sustained. Two years
earlier, the New Hampshire state legislature had enacted a statute that prohibited a person who participates in the
sport of skiing from suing a ski-area operator for injuries caused by the risks inherent in skiing. Using the information
presented in the chapter, answer the following questions..
1. What defense will Ragged Mountain probably assert? The strongest defense will be assumption of the risk, which
is common in sports. That defense is strengthened by the state statute that formalizes the defense.
2. The central question in this case is whether the state statute establishing that skiers assume the risks inherent in
the sport bars Alaina’s suit. What would your decision be on this issue? Why? Yes, because the statute strengthened
the traditional common law rule. The legislature can change or limit common law rules, such as those for liability. Here
the legislature strengthened the rule of assumption of the risk, which makes it very difficult for a plaintiff to overcome.
3. Suppose that the court concludes that the statute applies only to skiing and does not apply to snow tubing. Will
Alaina’s lawsuit be successful? Explain. No, because of assumption of the risk. The defense of assumption of the risk
would still likely be a successful defense for the ski resort. That rule generally applies to participants in sporting events
unless the host creates unreasonably dangerous conditions and does not warn clients.
4. Now suppose that the jury concludes that Alaina was partly at fault for the accident. Under what theory might her
damages be reduced in proportion to the degree to which her actions contributed to the accident and her resulting
injuries? Comparative negligence allows the jury to compute the contributions of both parties to the situation. This
results in the reduction or elimination of the plaintiff’s recovery, depending on the state rule and the percent of
negligence contributed.
DEBATE THIS:
Each time a state legislature enacts a law that applies the assumption of risk doctrine to a particular sport,
participants in that sport suffer. The argument is that the less liability imposed on a sports-activity operator, the less
that operator will take care to maintain the sports terrain and equipment. In other words, using the example of a ski
area, a law that exempts the ski area from liability for skiing accidents will result in the ski area owner investing less in
maintaining the trail system as well in the signage indicating hidden hazards. Additionally, ski area owner will pay for
fewer ski patrollers who force fast skiers to slow down in congested areas or areas reserved for beginners.
In contrast, there may be an upside to applying the assumption of risk doctrine to sports that are obviously not
always safe. The benefit to all of those who participate is that tickets for such sports as Alpine skiing will be cheaper.
There is competition among ski resorts. Therefore, if the ski resort owner pays less in liability insurance because of
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 161
the state law under study in this debate topic, at least part of the savings will be passed on to ticket buyers. Also,
ANSWERS TO QUESTIONS—
SPECIAL CASE ANALYSIS
Case No. 7.3
Pfenning v. Lineman
Court of Appeals of Indiana, 2010.
922 N.E.2d 45.
(a) Issue: The focus in this case was the application of the doctrine of assumption of risk to whom and in what
circumstances? The issue in this case was whether the doctrine of assumption of risk can apply not only to participants
in sporting events, but also to drivers of beverage carts and others who are not actively engaged in participating in an
event when they suffer an injury.
(b) Rule of Law: What are the requirements for an injured person to be held liable for his or her injury under the
doctrine of assumption of risk? For an injured person to be found liable for his or her injury under the doctrine of the
assumption of risk, the person must have known of the risk and voluntarily assumed it.
(c) Applying the Rule of Law: How did the court evaluate the facts in this case to assess liability under the doctrine of
assumption of risk? The court considered what the injured party knew and what she did with that knowledge. She
“arrived at the golf course utterly ignorant of the game,” but “had been participating in the golf scramble event for
approximately three hours prior to being struck by the golf ball. Over this extended time period, she had been
delivering beverages to foursomes during play.” The court found that “this supports an inference that [the plaintiff]
was aware of the inherent risks of golf; namely, that it involves players hitting golf balls long distances and that some, if
not many, of these balls invariably fail to land where intended.”
(d) Conclusion: Among the parties involved in this case, who was held liable for the plaintiff’s injury and why? The
court did not impose liability on any of the defendants, including the players, the sponsors, and other defendants.
Under the doctrine of the assumption of risk, the court held the injured plaintiff liable for the cost of her own injury.
The court concluded that “there is no duty from one participant in a sports activity to another to prevent injury
resulting from an inherent risk of the sport.”