Chapter 9 Negligence and Product Liability
1.
Negligence is the subject matter of more lawsuits than any other tort.
2.
To recover for negligence, the injured party must prove: (a) a negligent
act, (b) damages, and (c) causation.
3.
The fact finder is the jury in a jury trial and the judge in a nonjury trial.
4.
To avoid negligence, a child must exercise the degree of care that a
reasonably prudent child of the same age, intelligence, and experience would have
exercised under the same circumstances and conditions.
5.
To avoid negligence, a physician must exercise the degree of care and skill
of the average qualified physician, considering the advances in the medical profession.
6.
The duty of care owed to a business invitee was to refrain from ordinary
negligence. The duty of care owed to a gratuitous guest was to refrain from gross
negligence. The duty of care owed to a bare licensee was to refrain from willful, wanton,
and reckless conduct.
7.
Property owners owe a duty to use reasonable care toward everyone who
is rightfully on their premises.
8.
The duty of care owed to a trespasser is to refrain from willful, wanton,
and reckless conduct.
9.
The doctrine of res ipsa loquitur may be used if it is probable, not just
possible, that a negligent act of the defendant caused the plaintiff's injury.
10.
In a negligent action the plaintiff can recover the amount of money that
will place the plaintiff in the same position that he or she was in immediately before the
negligent act occurred.
11.
Damages include the cost of hospital and medical treatment, any loss of
wages, and an amount of money to compensate for pain and suffering endured by the
plaintiff.
12.
To recover for negligence, the plaintiff must prove that the negligent act of
the defendant was the direct and proximate cause of the plaintiff's injuries.
13.
Defenses to negligence are: (a) contributory negligence, (b) comparative
negligence, (c) assumption of the risk, (d) discharge in bankruptcy, and (e) the running of
the statute of limitations.
14.
Under the doctrine of contributory negligence, if the defendant can prove
that the plaintiff was also negligent no matter how slight, the plaintiff can recover
nothing. Under the doctrine of comparative negligence, each party's negligence is
compared, and the plaintiff's award is reduced in proportion to the plaintiff's negligence.
15.
Assumption of the risk has been used as a defense by baseball clubs when
they are sued by spectators who are injured by baseballs hit into the stands.
16.
A statute of limitations is a time limit, set by statute, within which suit
must be commenced after the cause of action accrues, that is, when a suit may be brought
for damages. In contrast, a statute of repose places an absolute time limit for bringing a
cause of action regardless of when the cause of action accrues.
Understanding Legal Concepts
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Checking Terminology
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Using Legal Language
While shopping in a grocery store, Alison slipped on some fat that had accumulated in
front of the meat counter. Alison was a(n) business invitee, and the negligence of the
store employees, who were not prudent (cautious), caused the accident. Because the
wrongful act was not extreme, the degree of wrong would probably be considered
ordinary negligence rather than gross negligence. The physician who treated Alison for
her injuries was capable and not responsible for malpractice, although the amount of the
physician's bill became part of Alison's damages. When Alison arrived home, she
noticed a police car in front of her house and saw a police officer inside. The officer, who
was a(n) bare licensee, told her that a neighborhood child had wandered without
permission into Alison's pool area and had almost drowned. A friend of Alison, who was
visiting at the time, rescued the child from drowning. The legal status of the friend was
that of a(n) gratuitous guest. Because the child was a trespasser, Alison's obligation to
her would normally have been to refrain from willful, wanton, and reckless conduct
unless the attractive nuisance doctrine required her to use ordinary care.
Should the case go to court, the jury, which is the fact finder, will have to determine
whether the child was negligent if the state follows the doctrine of contributory
negligence or the percent of negligence of each party if the state follows the doctrine of
comparative negligence. Because it is not probable but merely possible that Alison was
negligent, the plaintiff would not be able to use the doctrine of res ipsa loquitur to prove
the case. Similarly, it is doubtful that Alison can use the defense of assumption of the
risk or the statute of limitations if suit is brought promptly.
Puzzling Over What You Learned
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Caveat: Do not allow squares for spaces between words and punctuation (apostrophes, hyphens, etc.) when
filling in crossword.
Across
1. One invited on the premises for a business or commercial purpose.
2. The degree of care that a reasonable
person would have used under the circumstances then known.
9. The proportionate sharing between the plaintiff and the defendant of compensation
for injuries, based on the relative negligence of the two.
11. Cautious
13. Professional misconduct; negligence of a professional.
14. Known in advance; anticipated.
15. Extreme negligence.
16. A relationship between contracting parties.
Down
1. A person allowed on another's premises by operation of law, such as a fire fighter or police officer.
3. The want of ordinary care.
4. The failure to use that amount of care and skill that a reasonably prudent person would have used under the same
circumstances and conditions.
5. A monetary loss suffered by a party as a result of a wrong.
6. Legal responsibility.
7. The jury in a jury trial or the judge in a nonjury trial.
8. The thing speaks for itself.
10. One invited on the premises for nonbusiness purposes.
12. The direct and proximate cause of someone's injuries.