BUSINESS LAW
Alternate Edition 11thEd.
Jentz  Miller  Cross
Chapter 7: Negligence and
Strict Liability
Copyright © 2009 South-Western Legal Studies in Business,
a part of South-Western Cengage Learning.
§1: Negligence
 Tortfeasor does not intend the
consequences of the act or believes they
will occur.
 Actor’s conduct merely creates a
foreseeable risk of injury. Analysis:
– Defendant owed Plaintiff a duty of care;
– Defendant breached that duty;
– Plaintiff suffered legal injury;
– Defendant’s breach caused the injury.
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Duty of Care
 Defendant owes duty to protect Plaintiff
from foreseeable risks that Defendant
knew or should have known about.
 Courts use reasonable person standard
(jury) to determine whether duty exists.
 Duty of Landowners to warn invitees.
– Exception: Obvious Risks.
– CASE 7.1 Izquierdo v. Gyroscope,
Inc. (2007).
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Duty of Care: Foreseeability
 The consequences of an act are legally
foreseeable if they are consequences
that typically occur in the course of
event.
 Whether an act is foreseeable is
generally considered a matter of fact
determined by the reasonable person
standard (jury).
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Duty of Care
 Duty of care varies, based on the
Defendant’s occupation, relationship to
Plaintiff.
 Professionals may owe higher duty of care
based on special education, skill or
intelligence. Breach of duty is called
professional malpractice.
 No duty to rescue.
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The Injury Requirement
and Damages
 To recover, Plaintiff must show legally
recognizable injury.
 Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
 Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.
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Causation
 Even though a Tortfeasor owes a duty of
care and breaches the duty of care, the
act must have caused the Plaintiff’s
injuries.
– Causation in Fact, and
– Proximate Cause.
 CASE 7.2 Palsgraf v. Long Island
Railroad Co. (1928).
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Causation in Fact
 Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
 Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.
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Proximate Causation
 An act is the proximate (or legal) cause
of the injury when the causal connection
between the act and injury is strong
enough to impose liability.
 Foreseeability of injury is an important
factor.
 Think of proximate cause as an
unbroken chain of events.
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§2: Defenses to Negligence
 Assumption of Risk .
 Superceding Intervening Cause.
 Contributory or Comparative
Negligence.
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Assumption of Risk
 Plaintiff has adequate notice and
understanding of the risks associated with an
activity.
 He knowingly and willingly engages in the act
anyway.
 Plaintiff, in the eyes of the law, assumes the
risk of injuries that fall within the scope of the
risk understood.
 CASE 7.3 Sutton v. Eastern New York
Youth Soccer Association, Inc. (2004).
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Superseding Cause
 A unforeseeable, intervening act that
occurs after Defendant’s act that
breaks the causal relationship between
Defendant’s act and Plaintiff’s injury
relieving Defendant of liability.
 If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.
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Contributory Negligence
 Under common law, if Plaintiff in any way
caused his injury, he was barred from
recovery.
 Most states have replaced contributory
negligence with the doctrine of comparative
negligence.
 The operative concept in comparative
negligence is that one cannot recover from
another for any injuries one has caused to
oneself.
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Comparative Negligence
 In determining liability, the amount of
damages a Plaintiff causes to herself are
subtracted from the amount of damages
suffered by the Plaintiff, and only the
remainder is recoverable from the
Defendant.
 However, if Plaintiff is more than 50%
liable, she recovers nothing.
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§3: Special Negligence
Doctrines and Statutes
 Res Ipsa Loquitur.
 Negligence Per Se occurs when
Defendant violates statute that causes
injury to Plaintiff:
– Statute sets out standard of care.
– Plaintiff is member of class intended to be
protected by statute.
– Statute designed to prevent Plaintiff’s injury.
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Special Negligence
Doctrines and Statutes



“Danger Invites Rescue” Doctrine.
Good Samaritan Statutes.
Dram Shop Acts.
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§4: Strict Liability
 Theory of strict liability started with
Rylands v. Fletcher (1868 England).
 Defendant’s liability for strict liability is
without regard to: Fault, Foreseeability,
Standard of Care or Causation.
 Liability is based on abnormally dangerous
activities.
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Abnormally
Dangerous Activities
Defendant is strictly liable for an
“abnormally dangerous activity” if:
– Activity involves serious potential harm;
– Activity involves high degree of risk that
cannot be made safe; and
– Activity is not commonly performed in the
community or area.
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Other Applications of
Strict Liability
 Wild Animals:
– Persons who keep wild animals are strictly
liable for injuries caused by the beast.
– Persons who keep domestic animals are
liable if the owner knew or should have known
that animal was dangerous.
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Other Applications of
Strict Liability
 Product Liability. Manufacturers can
be found liable without regard to fault
(see Chapter 23).
 Strict Liability in Bailments (see
Chapter 47).
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