CHAPTER 7
NEGLIGENCE AND STRICT LIABILITY
ANSWER TO CRITICAL ANALYSIS
QUESTION IN THE FEATURE
INSIGHT INTO ETHICS—CRITICAL THINKING—INSIGHT INTO THE SOCIAL ENVIRONMENT (PAGE 142)
If plaintiffs can still collect significant amounts of economic damages, will the limits on non-economic
damages be effective at reducing the number of negligence lawsuits filed? Why or why not? Yes,
because in cases in which economic damages are slight, filing suit may not be sufficiently remunerative
to justify the time and expense. No, because the basis for the suits is negligence—limits on non-
economic damages do not dilute this theory or situations that give rise to it.
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 7.1—QUESTIONS (PAGE 138)
THE ETHICAL DIMENSION
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.
THE LEGAL ENVIRONMENT DIMENSION
What defense could the shopping center owners raise to counter McClain’s claim? The shopping center
CASE 7.2—QUESTION (PAGE 141)
THE GLOBAL DIMENSION
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
CASE 7.3—QUESTIONS (PAGE 144)
1A. 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 instead of treating all participants in a given sport the same. The judge
pointed out that the risks of a sporting event 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
be said to have “assumed the risks inherent to playing golf.”
2A. Suppose that Pfenning had been riding in the beverage cart with her grandfather when she was
struck by the golf ball. In that situation, would the outcome of this case have been any different? Why
or why not? Very likely, no. Pfenning’s mother had agreed that her minor daughter could ride with the
grandfather, and the court could easily conclude that the mother had thus consented, on behalf of her
daughter, to the inherent risks of golf to which the grandfather exposed her.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Defense
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.
2A. Statute
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 57
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.
3A. Effect of statute
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.
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE AT THE END OF THE
CHAPTER
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.
ANSWERS TO QUESTIONS AND CASE PROBLEMS
AT THE END OF THE CHAPTER
7-1A. Negligence
(Chapter 7—Pages 136–137)
The Restatement (Second) of Torts defines negligence as “conduct that falls below the standard
established by law for the protection of others against unreasonable risk of harm.” The standard
7-2A. QUESTION WITH SAMPLE ANSWER: Duty of care
This is a causation question. You will recall from the chapter that four elements must be proved for a
plaintiff to recover in a claim for negligence: that the defendant owed a duty of care, the defendant
breached this duty, the plaintiff suffered a legally recognizable injury, and the defendant’s breach of the
7-3A. Strict liability
(Chapter 7—Page 147)
The court agreed with the Kleins, applying the rule that “any party carrying on an ‘abnormally dangerous
activity’ is strictly liable for ensuing damages.” The court looked to the factors listed in the Restatement
7-4A. Negligence per se
(Chapter 7—Page 146)
The regulation prohibiting the placement of phone booths within rights-of-way was a safety regulation
7-5A. Negligence
(Chapter 7—Pages 136–137 & 139141)
Recovery of damages on the basis of negligence requires proof that a party owed a duty of care, which
was breached, and that the breach was the proximate cause of injury to the party seeking to recover. In
7-6A. CASE PROBLEM WITH SAMPLE ANSWER: Defenses to negligence
Donahue’s defense to the negligence charge was assumption of risk. “Collision with another skier is a
risk inherent in skiing. [The defense of] assumption of . . . risk precludes liability for collisions between
skiers who know and appreciate the well–known and inherent risk of such collisions.” The court ruled
7–7A Negligence
(Chapter 7—Pages 136–137 & 142144)
Negligence has four elements—a duty of care, a breach of that duty, an injury, and a causation
connection between the breach and the injury. Defenses to a claim of negligence include the lack of one
of these elements, as well as assumption of risk, superseding cause, and comparative and contributory
negligence. TNT and Trellebog could argue that they did not owe Camp a duty. They might also argue
that she assumed any risk. With respect to the duty element, could TNT or Trelleborg have reasonably
foreseen that Camp would open the trailer door in a way that would cause her harm? Camp was aware
7–8A. Negligence and multi=party liability
(Chapter 7—Pages 146)
The Tennessee high court clarified the law that applied to such instances. “The principles governing
liability for successive injuries are settled. They recognize that there are circumstances in which an
7–9A. A QUESTION OF ETHICS: Dram shop acts
(a) If there were a statute in South Carolina that could be applied to this set of facts, as there
are in some states, it would present a nearly unassailable argument in favor of imposing liability.
In the absence of such a specific law, an alcoholic beverage control statute might provide a basis
for imposing liability, under limited circumstances, on commercial hosts (the owners of bars, for
example). For policy reasons, those circumstances might be limited to the service of alcoholic beverages
62 UNIT TWO: TORTS AND CRIMES
to an intoxicated adult to whom recovery might be denied. Commercial entities might also be statutorily
liable for knowingly selling alcoholic beverages to minors, who may be allowed to recover. It could be
argued that liability might extend, under at least the latter statutes, to social hosts. But these statutes
would likely not support imposing a common-law negligence duty on a social host with recovery by an
underage individual who consumed the alcoholic beverages. Why? Because this would impose a higher
standard on the social host than that to which the commercial provider was subject.
In any situation, it might be argued that underage drinkers who are not minors should be
considered the same as other adults, with no liability imposed on their social hosts for torts committed
by intoxicated guests. The court recognized in the Marcum case, however, that “the public policy of this
State treats these [underage] individuals as lacking full adult capacity to make informed decisions
The court emphasized the “knowing and intentional” requirement of its holding and noted that
“we leave for another day the question whether an adult social host who is merely negligent in allowing
the consumption of alcoholic beverages by a minor guest under the age of 18 may incur liability.” The
imposition of liability for negligence in that circumstance would most likely hinge, as in the Marcum
case, on the finding of a duty. The text states that such a duty and its breach is often subject to the
finding of a jury and is determined on a case-by-case basis.
(b) The contrast in liability and punishments among the states is a consequence of conflicting
public attitudes about underage drinking. Parents who would not approve of their underage children
consuming alcoholic beverages outside their homes, for example, might condone such drinking in their
homes. In that situation, the rationalization might be to keep teenagers off the road and out of other
kinds of trouble. Some might view this attitude and its supporting “reasoning” as what is sometimes
referred to as “situation ethics.” The legal environment might unintentionally lend support to these
ANSWER TO VIDEO QUESTION NO. 7–10
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 63
Jaws
(a) In the video, the mayor (Murray Hamilton) and a few other men try to persuade Chief
Brody (Roy Scheider) not to close the town’s beaches. If Brody keeps the beaches open and a
swimmer is injured or killed because he failed to warn swimmers about the potential shark
danger, has Brody committed the tort of negligence? Explain. The tort of negligence involves the
(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.
(c) Suppose that Chief Brody goes against the mayor’s instructions and warns
townspeople 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
been told of the risk and went into the water anyway, Chief Brody has met both elements of this
likely conclude that they also had been negligent. In a comparative negligence state, the
7–11A. SPECIAL CASE ANALYSIS: Assumption of risk
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
64 UNIT TWO: TORTS AND CRIMES
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