CHAPTER 7Negligence andStrict Liability

Requirements for Negligence• Elements

– Defendant had duty to not injure plaintiff

– Defendant breached that duty– Defendant’s breach was

proximate/actual/legal cause of plaintiff’s injuries

Duty – Objective Standard

• Flexible• Reasonable Person of Ordinary Prudence in

Similar Circumstances• Relationship Factor• Diggs v .Arizona Cardiologists, Ltd., p. 134

– A cardiologist whose opinion was solicited by an emergency room doctor about a patient owed a duty of reasonable care to the patient even though she was not the cardiologist’s patient.

Duty – Limited Duty of Care Doctrine/Assumption of

Risk• The New Jersey State Supreme Court ruled that a ballpark

patron hit by a foul ball while buying a beer can sue the park owner for negligence. The ruling alters the long-standing "baseball rule" -- a limited-duty-of-care doctrine that for more than a century has shielded stadium owners from litigation. Fans agree to assume a risk of injury, such as from a foul ball or thrown bat, as part of the experience of being close to the game. To foster that up-close feel, there is very little separating fans and the field. The Sept. 13 ruling, which affects the eight minor league baseball stadiums that have opened in New Jersey in the past 10 years, may prompt teams and owners to erect nettings, screens and other protective barriers between fans and the field to avoid liability. (See: Baseball Fan Hit by Foul Allowed to Sue Park Owner for Negligence, Friday September 23, 2:58 am ET, Charles Toutant, New Jersey Law Journal on Law.com at: http://biz.yahoo.com/law/050923/edc8a78e66792f6910de84c43193a848.html?.v=1)

Duty – Objective Standard

• Question 5 at end of chapter– Yes. In determining whether a duty is owed, courts must consider (1) the

relationship between the parties, (2) the foreseeability of the harm, and (3) public policy issues, The relationship between pharmacist and customer is a direct one based on contract. It is independent of the doctor-patient relationship. A contractual relationship often forms the basis of a tort duty. Pharmacists possess expertise regarding the dispensing of prescription drugs and customers rely on them for the expertise. The relationship between them is sufficiently close to justify imposing a duty. It is foreseeable that one who consumes sufficient quantities of addictive substances becomes addicted to them, and this addiction carries with it reasonably foreseeable consequences. Public policy also mandates imposing a duty. One important policy is to prevent intentional and unintentional drug abuse. The legislature has expressed this policy by empowering pharmacists to refuse to fill prescriptions if, in their judgment, filling them would be against the law, be against the best interest of the patient, aid or abet an addiction or habit, or be contrary to the health or safety of the patient. Imposing this duty will have only a minimal effect on health care costs. The pharmacy already has a computer system in place that gives the pharmacist immediate access to a customer’s entire prescription history. While pharmacists are not insurers against a customer becoming addicted, they must act as a reasonable prudent pharmacist would under similar circumstances. Hooks Super X Inc. v. McLauglin, 642 F.2d 514 (Sup. Ct. Ind. 1994).

Duty – Negligence Per Se

• by Statute• Injury of Type Designed to Protect Against• Plaintiff within Group intended to Protect

Duty – Negligence Per Se

• Question 6 at end of chapter– Gaines-Tabb v. ICI Explosives USA Inc.

» People injured in the Oklahoma City bombing cannot sue the manufacturers of the ammonium nitrate used in the bomb under a theory of negligence per se.

» 10th also dismissed plaintiffs’ negligence claim because they could not show that the manufacturer’s conduct was the proximate cause of their injuries.

» Liability could lie if the criminal acts of a third party might be foreseeable if the situation caused by the defendant would provide a temptation to which a “recognizable percentage” of persons would yield. Since plaintiffs were only able to point to one other situation in 28 years in which AN was used to make a terrorist bomb, they were unable to show a “recognizable percentage.”

» The plaintiffs were also unsuccessful in their product liability claim because there was no adequate allegation that the product was unreasonable dangerous.

Duty – Negligence Per Se

• Hernandez v. Flor, p.135– The court found the mobile home owner negligent per se in

connection with a tenant's death in a fire; the owner violated a Minnesota statue which required rental unit owners to maintain smoke detectors. The decedent’s widow also argued that her late husband’s employer was negligent per se for failing to maintain the smoke detectors. Flor rented the mobile home to the employer, who in turn, rented the home to a number of migrant workers. The widow said this “subletting” relationship demonstrated that the employer was in control of the home. However, the court read the statute narrowly, holding that it applied only to owners and not decedent’s employer, even if the employer was in control of the home. Under the statue, only owners were liable for failing to maintain detectors.

Duty – Negligence Per Se

• The California legislature has defined the phrase water skis, an aquaplane, or a similar device to include bare feet when used for water skiing. Thus, the fact that Ford was skiing barefoot does not put him outside the statute’s protection. However, he still cannot rely on it for he is not within the class of persons for whose protection the statute was adopted. The statute was adopted for the protection of third persons with whom a water skier might collide or whose property might be damaged by a collision with water skis, an aquaplane, or the water skier. It imposes a duty on both skiers and boat operators to conduct themselves so as to avoid collision with any object or person. Since Ford does not fall within the protected class, he cannot rely on the statute. Ford v. Gouin, 834 P.2d 724 (Cal. 1992).

Negligence

• Breach– Forseeable– Unreasonable Risk– Reasonable Person

Causation– Foreseeable

• In re September 11 Litigation, p. 137– The court found that crash of the airplanes was

within the class of foreseeable hazards resulting from negligently performed security screening. It is important to note that this was a ruling on defendant’s motion to dismiss. The court noted that defendants' motions asked the court to rule on the issue of duty owed at a very early stage of the pleadings alone and before any discovery. The court is ruling that the airlines were a proximate cause of the harm. The court held that a factual record would facilitate intelligent review and authoritative determination of the issues of duty raised by the cases and was even more vital in this litigation because so little was known about many of the causes and consequences of September 11, 2001, and thus the parameters of possible duties owed to plaintiffs.

Causation– Foreseeable

•Question 8 at end of chapter– Yes. The manager should have known a fight was about

to break out. She knew the restaurant’s policy was to phone the police in such a situation. She did not call the police in a timely manner but instead sent Rockwell outside to fend for himself. The jury could reasonably find that it was foreseeable that the conduct of the three young men would result in harm to Rockwell, and that her negligence in failing to call the police earlier was the proximate cause of his injuries. Whataburger, Inc. v. Rockwell, 706 So. 2d 1220 (Ct. Civ. App. Ala 1997).

Causation– Cause in Fact = actual or direct– Proximate Cause = in natural and

continuous, unbroken sequence without which injury would not have occurred

– “Egg Shell Plaintiff” Rule• Jensen v. Eveleeth Taconite Co., p.138

– The court extends the “eggshell skull” rule to emotional injuries caused to women with “fragile psyches.”

Negligence

• Res Ipsa Loquitur– Cause difficult to prove– Defendant exclusive control of

instrument causing injury– Injury ordinarily not occur without

negligence– Shifts burden of proof to Defendant

Negligence

• Res Ipsa Loquitur– Question 7 at end of chapter

• No. The doctrine of res ipsa loquitor can be used when the thing which causes injury without any fault of the injured is under the exclusive control of the defendant, and the injury is the kind that does not ordinarily occur without negligence. Before the doctrine can be used in a medical malpractice case, plaintiff must prove that the type of harm she suffered rarely occurs and that it is not an inherent risk of the procedure. Perforation of the uterus occurs in a significant number of D & C procedures, and occurs despite the exercise of proper care. Thus, plaintiff is not entitled to use the doctrine. Clark v. Norris, 734 P. 2d 182 (Sup. Ct. Mont. 1987).

Negligence

• Negligent Infliction of Emotional/Mental Distress– Serious emotional distress– Foreseeable– May be 3rd party witnessing (e.g.

Mother watching child hit by school bus)• See chart, p.78• Dunphy v. Gregor, p.78

– A woman who sees her fiance mortally injured by a driver is allowed to sue for negligent infliction of emotional distress.

Negligence

• Negligent Infliction of Emotional/Mental Distress– Izquierdo v. Ricitelli, p. 130

– A man who sees his fiancé injured by a dog is allowed to sue for negligent infliction of emotional distress. Note that the court is extending the limitation to include more plaintiffs. This case shows how society and law sometimes mutually shape each other. As social conventions shift and change, so too does the law. It is unlikely such a result would have been found twenty years ago.

Negligence- Defenses

• Last Clear Chance (note: I have never seen this argument win!)

• Intervening/Superceding Force– Coles v. Jenkins

• A legally blind driver without a license who hit a bicyclist on a bike tour was not sufficiently extraordinary and unforeseeable to be an intervening cause; thus, the bicycle tour company could still be held liable.

Negligence- Defenses• Contributory vs. Comparative Negligence

– In a contributory negligence jurisdiction, if the plaintiff is any % at fault he gets no recovery.

– In a comparative negligence jurisdiction, the recovery is reduced by the % of the plaintiff’s fault

– Question 12 at end of chapter• Yes. When the accident occurred, the law required that cars be equipped

with seat belts but there was no law requiring their use. Thus, plaintiff was not negligent per se. The failure to wear the seat belt, however, can be considered in assessing liability. While Waterson’s failure to wear he seat belt did not contribute to the accident, it may have contributed to her injuries. Comparative negligence contemplates the inclusion of all relevant factors in arriving at appropriate damages awards. Certainly nonuse of a seat belt may be a relevant factor. If there is a causal relationship between the failure to wear the seat belt and the injuries, plaintiff’s recovery can be reduced accordingly. Waterson v. General Motors Corp., 544 A.2d 357 (Sup. Ct. N.J. 1988).

Negligence- Defenses• Assumption of Risk

– Powell v. Metropolitan Entertainment, p. 140• The court finds that Powell voluntarily assumed the risk of his hearing loss: he had

experienced ringing in his ears after previous concerts and knew the Fogerty concert was loud, but stayed nonetheless. Note that the court made mention several times that Powell was a 51-year old lawyer who had attended loud rock concerts in the past. This is likely to demonstrate that Powell fully appreciated the risk he was taking. Usually, courts will not find that there is an assumption of the risk where, due to age or inexperience, the plaintiff does not in fact comprehend the danger. The court also noted the dramatic absence of litigation over such matters, noting that the absences “speaks volumes to the fact that the principle applicable to the social compact governing the volume at rock and roll concerts is caveat emptor.” Certain aspects of our social lives are so normalized, or accepted, that they come to influence the law. Clearly, as the court notes, hundreds of millions of people have had their aural senses assaulted a loud rock concerts, yet virtually no one sues over the volume. Loud noise at such events might be thought of as something of a cultural expectation.

Negligence- Defenses

• Assumption of Risk– Coles v. Jenkins

• This is the same case that appeared earlier in the chapter. The court finds that there is substantial evidence that could support a finding of assumption of the risk..

• Even though the Egans were likely to win on the proximate cause issue, they would likely lose on assumption of the risk. In light of this, the parties had strong reason to settle the case rather than take their chances with a jury, The Egans could still successfully sue Jenkins, but he may be judgment-proof. Since he was not authorized to drive, it is unlikely that he had insurance.

• Note: Most cases are appealed on more than one issue and contain several rulings.

Negligence- Defenses

• Assumption of Risk– As a general rule, persons have a duty to use due care to avoid

injury to others. The general rule, however, does not apply to coparticipants in a sport, where conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. In these circumstances, participants have a duty to use due care not to increase the risk over and above those inherent in the sport. The nature of the sport is highly relevant in defining the particular duty of care. Skiers assume the risk inherent in skiing, including the risk of collision. This bar to suit assumes that the fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn and sudden stop. Cheong v. Antablin, 946 P.2d 817 (Cal. Sup. Ct. 1997).

Strict Liability• Person participates in activities

responsible for harm to others despite care/caution– Ultrahazardous activities

• Klein v. Pyrodyne Corp., p.142 – The court determines that a pyrotechnics company is engaging in

an abnormally dangerous activity when it puts on a 4th of July fireworks display. Thus, strict liability applies in the suit against it.

– Factors to be considered in determining whether something is abnormally dangerous

» High degree of risk of harm?

» Likelihood of great harm?

» Inability to eliminate risk by reasonable care?

» Extent to which activity not common use?

» Inappropriateness of activity to place?

» Value outweighed by risk?

Current Issues- Torts

• Liability Insurance- Crisis– Higher Premiums– Reduction in Coverage– Refusal of Coverage

• Reform Measures– Limit on Non-Economic Damages– Limit on Punitive Damages– Regulation of Insurers