Chapter 7: Negligence and Strict Liability

Question 1

What are the elements of a negligence claim?

Answer 1

1. Defendant owed a duty of care to plaintiff
2. Defendant comitted a breach of duty
3. Breach was actual and proximate of the injury experienced by plaintiff

Question 2

What is duty of due care?

Answer 2

In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant’s conduct

A duty may arise if a special relationship existed between the parties

• Examples of a special relationship: doctor-patient, lawyer-client, accountant-client

Question 3

What is a breach of duty of care?

Answer 3

If a duty exists, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances (reasonable person standard)

The test focuses on defendant’s behavior, not defendant’s intent

• Reckless behavior may be unreasonable

Question 4

What is negligence per se?

Answer 4

The defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff

1. Was with the class of persons intended to be protected by the statute or other law, and
2. Suffered harm of a sort that the statute or other law was intented to protect against

Question 5

What are the three types of injuries and damages?

Answer 5

1. Personal injury: harm to the plaintiff’s body; also called “physical” or “bodily”
2. Property damage: harm to the plaintiff’s real estate of a personal property item such as a car
3. Emotional injury

Question 6

What is Res ipsa loquitur?

Answer 6

(The thing that speaks for itself) Res ipsa applies when:

1. The defendant has total control of the instrument of harm
2. Harm would not occur in absence of negligence, and
3. Plaintiff not responsible for his own injury

Example: After abdominal surgery, patient complains of pain in abdomen and X-ray shows surgical clamp left in abdomen

Question 7

What is contributory negligence?

Answer 7

The plaintiff’s failure to exercise reasonable care for his/her own safety

Example: Auto accident in which defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully

Question 8

What is comparative negligence?

Answer 8

Contributory negligence used to be a complete defense, but most state enacted comparative negligence systems in which a court of jury determines relative negligence of parties and awards damages in proportion to each party’s degree of negligence

Question 9

What is assumption of risk?

Answer 9

Plaintiff’s voluntary consent to known danger

Question 10

What is the exculpatory clause?

Answer 10

Plaintiff expressly assumes risk of injury by a contract term that attempts to relieve defendant of a duty of care otherwise owed to plaintiff

Question 11

What is strict liability?

Answer 11

Liability without - or irrespective - of fault

• Thus, a defendant is liable even though he/she did not intent to cause harm and did not act recklessly or negligently
• Basic for product liability cases