CHAPTER 8: NEGLIGENCE
AND STRICT LIABILITY
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TOPICS COVERED IN CHAPTER 8:
NEGLIGENCE, STRICT LIABILITY
I. Negligence.
A. Breach of Duty of Care.
B. Factual Cause.
C. Harm.
D. Defenses to Negligence. 
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TOPICS COVERED IN CHAPTER 8:
NEGLIGENCE, STRICT LIABILITY
II. Strict Liability.
A. Activities Giving Rise to Strict
Liability.
B. Defenses to Strict Liability.
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NEGLIGENCE
 Elements of Negligence:
• Duty of Care.
• Breach of Duty.
• Factual Cause.
• Harm.
• Scope of Liability.
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BREACH OF DUTY OF CARE
 Reasonable Person Standard –
degree of care that a reasonable
person would exercise in a given
situation.
• Children.
• Physical Disability.
• Mental Disability. 
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BREACH OF DUTY OF CARE
 Reasonable Person Standard.
• Superior Skill or Knowledge.
• Emergencies.
• Violation of Statute (negligence per se).
• RYAN V. FRIESENHAHN (1998).
 Duty to Act.
• Except in special circumstances, no one is
required to aid another in peril.
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BREACH OF DUTY OF CARE
 Duties of Possessors of Land.
• Rights are limited by duty to do what is
reasonable in nature, and to protect the
rights of visitors and neighbors.
• Duty to Trespassers – not to injure
intentionally.
• Duty to Licensees – to warn of known
dangerous conditions licensees are unlikely
to discover for themselves. 
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BREACH OF DUTY OF CARE
 Duties of Possessors of Land.
• Duty to Invitees – to exercise reasonable
care to protect invitees against
dangerous conditions possessor should
know of but invitees are unlikely to
discover. 
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BREACH OF DUTY OF CARE
 Duties of Possessors of Land.
• Third Restatement:
• Reasonable duty extends to ALL, including
trespassers (except ‘flagrant’ trespassers).
• Requires inspection of dangerous
conditions.
• Love v. Hardee’s Food Systems, Inc.
(2000). 
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BREACH OF DUTY OF CARE
 Res Ipsa Loquiter.
• “The Thing Speaks for Itself.”
• Permits jury to infer both negligent
conduct and causation from the mere
occurrence of certain types of events.
• Example: a sponge or instrument left in a patient
after a surgery.
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FACTUAL CAUSE
 Factual Cause– the defendant's
conduct was the actual cause of, or a
substantial factor in causing, the
injury.
• The “But For” Test.
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SCOPE OF LIABILITY
 Foreseeability – no liability if
defendant could not reasonably have
anticipated injuring the plaintiff or a
class of persons to which the plaintiff
belongs.
• PALSGRAF V. LONG ISLAND RAILROAD CO.
(1928).
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SCOPE OF LIABILITY
 Superseding Cause – an intervening
act that relieves the defendant of
liability.
• PETITION OF KINSMAN TRANSIT CO. (1964).
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HARM
 Harm to Legally Protected Interest –
courts determine which interests are
protected from negligent
interference.
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DEFENSES TO NEGLIGENCE
 Contributory Negligence – failure of a
plaintiff to exercise reasonable care
for his own protection, which in a few
States prevents the plaintiff from
recovering anything. 
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DEFENSES TO NEGLIGENCE
 Comparative Negligence – damages
are divided between the parties in
proportion to their degree of
negligence; applies in almost all
States.
 MOORE V. KITSMILLER (2006). 
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DEFENSES TO NEGLIGENCE
 Assumption of the Risk - plaintiff's
express consent to encounter a
known danger, some states still apply
implied assumption of the risk.
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DEFENSES TO A
NEGLIGENCE ACTION
Is defendant negligent?
Yes
No
Defendant prevails
Yes
Defendant prevails
Has plaintiff assumed the risk?
No
Is plaintiff contributorily
negligent?
No
Defendant loses
Yes
Is there comparative
negligence?
No
Did defendant have a last
clear chance?
Yes
Damages are apportioned
Yes
Defendant loses
No
Defendant prevails
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ACTIVITIES GIVING RISE
TO STRICT LIABILITY
 Definition – absolute liability, or
liability even without fault.
 Activities Giving Rise to Strict Liability.
• Abnormally Dangerous Activities –
involve a high degree of serious harm and
are not matters of common usage.
• KLEIN V. PYRODYNE CORP. (1991). 
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ACTIVITIES GIVING RISE
TO STRICT LIABILITY
 Activities Giving Rise to Strict
Liability.
• Keeping of Animals – strict liability is
imposed for wild animals and usually
for trespassing domestic animals.
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DEFENSES TO STRICT LIABILITY
 Contributory Negligence – is not a
defense to strict liability.
 Comparative Negligence – may apply
and reduce plaintiff’s recovery.
 Assumption of Risk – Restatement
Third eliminates assumption of risk as
a defense in most strict liability cases.
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