Chapter 7

Negligence and Strict Liability

1-1 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.
 Negligence
Negligence: An unintentional breach of duty by
the defendant. The plaintiff must prove:
1. The defendant had a duty not to injure the plaintiff

2. The defendant breached that duty

3. The defendant’s breach was the actual and legal
(proximate) cause of the plaintiff’s injuries (causation)

The plaintiff must overcome defenses to liability

1-2 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Duty
• Everyone has a duty to avoid injuring others
• Exposing another to harm is a breach of duty
• The reasonable person: an objective standard of
conduct is used to judge behavior. The reasonable
person always exercises due care and would never
expose another person to harm.

1-3 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Duty
• Special Relationships between the parties (Elevated
levels of duty- parent:child, husband:wife, brother:sister, airline
staff:passenger, hotel staff:guest)

Duty to rescue?

1-4 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Duty
• Negligence per se: Violating a statute is negligent
(speeding; failure to comply with automobile inspection laws;
failure to board up a vacant building)

1-5 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Duty
• Res ipsa loquitor: “The thing speaks for itself.” The act
itself proves negligence (This kind of injury would not
have occurred unless somebody was negligent.)

1-6 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Causation
• The breach of duty must be the direct cause (cause in
fact) of the plaintiff’s injuries
• Proximate cause: Legal limit on the extent of negligence
liability

1-7 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Causation
• Foreseeability: Injury must have been predictable or
within the scope of the foreseeable risk (In fact, this
can be more than some people could foresee.)
• Would a reasonable person be able to predict that this
kind of injury would occur?

1-8 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Causation
• Defendant’s take plaintiffs as they find them
– A defendant is liable for injuries to plaintiffs with an “egg-shell
skull,” which means plaintiffs more susceptible to injury (an
elderly or weak person) This standard applies to all torts.

1-9 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Negligent Infliction of
Emotional Distress
• Most courts are reluctant to allow for purely mental injuries produced by
negligence (As with intentional infliction of emotional distress, must show
some physical symptoms).
• Courts traditionally required impact before a plaintiff could recover but are
now allowing claims in some cases of severe distress.
• Third parties can recover for emotional distress if they witness harm to a
loved one (Example: Hillsborough Disaster-1989). The relationship is usually
limited to immediate family. The injured third party must have been very
close (within a few meters) when the injury occurred.

1-10 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Defenses to Negligence
Contributory negligence:
•People who fail to exercise
reasonable care shouldn’t
recover compensation since their
behavior helped cause their
injuries
•Last clear chance: plaintiffs can
recover if the defendant had the
last chance to avoid harm
Pure Comparative Negligence
• Allows partial recovery even if
plaintiff is partially negligent
• Has replaced contributory
negligence in most states
• A fairer system because it
distributes liability based on
percentage of fault

Mixed or Modified Comparative Negligence: If the injured party is more

than 50% responsible for his injury, he cannot recover damages

Assumption of the Risk: Plaintiffs who voluntarily expose themselves to

danger can’t recover damages.
1-11 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.
 Recklessness
• Recklessness: A conscious disregard for a
known high degree of risk of possible harm.
• The risk must be significantly greater than a
simple negligent act. Recklessness is
somewhere in between an intentional tort and
negligence.

1-12 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Strict Liability
• Participating in certain types of activities makes
you automatically liable for resulting harm to
others, no matter how careful you are.
• The plaintiff does not have to prove any fault.

1-13 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Strict Liability
Ultra-hazardous or inherently dangerous activities: Even
if all safety measures are taken, strict liability will be
applied if injury results.

1-14 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Strict Liability
Ultra-hazardous or, inherently dangerous activities:
Assumption of risk can be a defense for providers of
inherently dangerous activities.
- Plaintiffs who voluntarily participate in an inherently
dangerous activity may sue for injuries, but recovery of
damages is usually not possible because they
voluntarily participated.

1-15 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Strict Liability
Manufacturers of dangerous & defective products

1-16 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.

 Negligence

Chapter 7,
Page 129

1-17 Copyright ©2015 McGraw-Hill Education. All Rights Reserved.