Chapter 8

Negligence and Strict Liability

 

Objectives:

1. List elements of negligence

2. Explain varying duties of care

3. Duty of care of landowner to trespasser, licensee, invitee

4. Defenses such as comparative negligence and assumption of the risk

5. Elements of strict liability

 

I. Negligence

          A. Elements

                    1. Duty

                    2. Breach

                    3.Causation

                             a. Cause in fact (but for or substantial factor)

                             b. Proximate Cause

          4. Damages

 

          B. Duty

                    1. Reasonable person standard

                    2. Note higher standard for pros, lower standard for less capable

                    3. Negligence Per Se

                   Ryan v. Friesenhahn, p. 142. Facts: Guest at high school party dies in fatal accident after the party. Host parents encouraged kids to drink. Issue: Did the parents breach a duty of care to the guest? Holding: Yes. Negligence per se due to statute against giving alcohol to minors.  Court distinguished adult guests.

                    4. Generally, no duty to help those in need

                             Soldano v. O'Daniels, p. 144. Facts: Victim was being threatened in parking lot of saloon. Patron went in and asked bartender to call cops or allow patron to call cops. Bartender refused. Victim was shot and killed.

                           Issue: Did bartender breach a duty by disallowing the phone call?

                           Holding: Yes. Court seems to be saying that actively preventing assistance is different from refusing to assist.

                    5. Duties of possessors of land, see chart p. 146

                   Love v. Hardee's, p. 146. Facts: Slip and fall in Hardee's bathroom, alleged wet floor. Hardee's could not prove bathroom had been cleaned on schedule. It did not appear employees followed procedures. Evidence indicated no one else had dripped water.

                   Issue: Did plaintiff establish constructive notice of unsafe condition?

                   Holding: Yes. Evidence supported inference that Hardee's should have known of the dangerous condition in the bathroom.

                   6. Res ipsa loquitor.  Some situations cannot occur without negligence, so law presumes negligence

 

          C. Causation

                   1. Cause in fact

                             a. "But for" causation

                             b. Substantial factor test

                   2. Proximate causation

                             a. Limits liability to foreseeable consequences, even if cause in fact exists

                             Palsgraf, p. 149. Facts: Man with package tries to board train as it is leaving. Employee on train tries to pull him aboard, and another tries to push him on from behind. He drops the package. The package contains fireworks which go off, knocking over a scale at the other end of the platform, which falls on plaintiff.

                             Issue: Was the negligent assistance to board the train proximately cause injury to plaintiff?

                             Holding: No. It was not foreseeable that if the package fell, it would explode and cause injury.

 

                             b. Superseding cause

                             Kinsman, p. 150. Facts: Ship was docked on river near Buffalo in winter. Ice built up, and then broke up and crashed into ship. Mooring cable broke loose, which belonged to Continental Grain. Ship broke loose, floated down river, crashed into another ship. Both broke loose, and approached drawbridge. Due to shift change, no one raised bridge. Ships crash into bridge, damming river, causing flooding.

                             Issue: Can proximate cause limitations or superseding cause arguments save any of the defendants under Palsgraf?

                             Holding: No. It's foreseeable that if the ship gets away, it can cause lots of damage.

 

          D. Damages or Injury

 

          E. Defenses

                   1. Contributory negligence and last clear chance

                   2. Comparative fault (pure and modified)

                   3. Assumption of the Risk

                   Dukat v. Leiserv, p. 153. Facts: P fell on ice in parking lot at bowling alley. Evidence indicated she had three beers in three hours and did not eat dinner. Also, she noticed the ice before going into the bowling alley, but said nothing.

                   Issue: Should P's recovery be barred or reduced by AOTR or contributory negligence?

                   Holding: No, on assumption of the risk. Yes, on contributory negligence. Case remanded for new trial.

 

II. Strict Liability

          A. Same elements as negligence, except duty is absolute. Any breach results in liability.

          B. Strict liability situations

                   1. Abnormally dangerous activities

                   Klein v. Pyrodyne, p. 155. Strict liability applies to injuries from public fireworks displays.

          C. Keeping of animals

          D. Defenses to strict liability

                   1. Comparative negligence

                   2. Assumption of the risk