Chapter 6 - Negligence and Strict Liability

Question 1

Define Negligence

Answer 1

Unintentional tort that is from harm that arises by accident.

Question 2

What is the landmark case regarding Negligence?

Answer 2

Palsgraf v. Long Island Railroad

Question 3

What are the five elements that must be proven to win a negligence case?

Answer 3

Duty of Due Care, Breach, Factual Cause, Proximate Cause, Damages

Question 4

Define Duty of Due Care

Answer 4

The defendant had a legal responsibility to the plaintiff.

Each of us has a duty to behave as a reasonable person would under the circumstances.

Question 5

Define Breach (of Duty)

Answer 5

The defendant has breached her duty of care or failed to meet her legal obligations

A defendant breaches his duty of care by failing to behave the way a reasonable person would under similar circumstances

Question 6

Define Factual Cause

Answer 6

The defendant’s conduct actually caused the injury

Question 7

Define Proximate Cause

Answer 7

It was foreseeable that conduct like the defendant’s might cause this type of harm

Refers to a party who contributes to a loss in a way that a reasonable person could anticipate.

Question 8

Define Damages

Answer 8

The plaintiff has been hurt or has actually suffered a measurable loss.

Question 9

Define Trespasser

Answer 9

A person on someone else’s property without consent

Question 10

Define Licensee

Answer 10

A person on property for her own purposes, but with the owner’s permission

Question 11

Define Invitee

Answer 11

A person who has a right to be on the property because it is a public place or a business open to the public

Question 12

Under Special Duty: Landowner’s Liability, who is a landowner liable to, in the order of liability to the lowest liability to highest

Answer 12

Trespassing Adults
Trespassing Children
A Licensee
An Invitee

Question 13

Explain a landowner’s liability to a trespassing adult

Answer 13

A landowner is liable to a trespasser only for intentionally injuring him or for some other gross misconduct. The landowner has no liability to a trespasser for mere negligence. (You can’t put traps on your property to protect your property)

Question 14

Explain a landowner’s liability to trespassing child

Answer 14

If there is some manmade thing on the land that may be reasonably expected to attract children, the landowner is probably liable for any harm.

Question 15

Explain a landowner’s liability to a licensee

Answer 15

A social guest is a typical licensee. A licensee is entitled to a warning of hidden dangers that the owner knows about. They are only liable for hidden dangers. (Not the owners fault if they touch a hot toaster). You must have actual knowledge of a specific hidden danger to be liable.

Question 16

Explain a landowner’s liability to an invitee

Answer 16

The owner has a duty of reasonable care to an invitee. Perry is an invitee when he goes to the town beach. If riptides have existed for years and the town fails to post a warning, it is liable if Perry drowns. They are liable even if you had no idea that something on your property posed a hidden danger. Therefore you must conduct regular inspections to be sure nothing is becoming dangerous.

Question 17

Explain Special Duty for Professionals

Answer 17

A person on the job must act as a reasonable person in her profession.

Question 18

Explain Special Duty for Hiring and Retention

Answer 18

Companies must be on guard because they can be liable for hiring or retaining violent employees.

Question 19

Define a Superseding Cause

Answer 19

When one of the ‘dominoes’ in the row is entirely unforeseeable, courts will call that event a superseding cause, letting the defendant off the hook.

Question 20

Define Res Ipsa Ioquitur

Answer 20

Means “The thing speaks of itself” and refers to cases where the facts only imply that the defendant’s negligence caused the harm.

This dramatically shifts the burden of proof from the plaintiff to the defendant.

Question 21

When does Res Ipsa Ioquitur apply?

Answer 21

Only when

1. The defendant had exclusive control of the thing that caused the harm
2. the harm normally would not have occurred without negligence, and
3. The plaintiff had no role in causing the harm.

Question 22

When injury is unclear, what must the plaintiff do?

Answer 22

The plaintiff must persuade the court that he has suffered harm that is genuine, not speculative.

Question 23

Define Assumption of Risk

Answer 23

A person who voluntarily enters a situation of obvious danger cannot complain if she is injured

Question 24

Define Contributory Negligence

Answer 24

A plaintiff who is even slightly negligent recovers nothing

Question 25

Define Comparative Negligence

Answer 25

A plaintiff may generally recover even if she is partially responsible A jury will be asked to compare the relative negligence of the two parties.

Question 26

Define Strict Liability

Answer 26

A high level of liability assumed be people or corporations who engage in activities that are very dangerous

Question 27

Define Defective Products

Answer 27

Generally lead to strict liability

Question 28

Define Ultrahazardous Activities

Answer 28

A defendant engaging in such acts is virtually always liable for resulting harm

Plaintiffs do not have to prove duty, breach, or foreseeable harm.

Question 29

Define Negligence Per Se

Answer 29

Violation of a standard of care set by statute.