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Business Law and the Legal Environment for a New Century
Alternate Edition
Quote of the Day
“The life of the law has not been
logic; it has been experience.”
Oliver Wendell Holmes, Jr.,
Supreme Court Justice
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Business Law and the Legal Environment for a New Century
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Negligence --
“The Unintentional Tort”
To win a negligence case, the plaintiff must
prove that the defendant failed in five areas:
 Duty of due care -- there must be a duty




owed to the plaintiff.
Breach -- duty must be breached.
Factual cause -- the injury must have been
caused by the defendant’s actions.
Foreseeable harm -- it must have been
foreseeable that the action would cause
this kind of harm.
Injury -- the plaintiff must have been hurt.
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Business Law and the Legal Environment for a New Century
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Breach of Duty

A defendant breaches his duty of due care by
failing to behave the way a reasonable person
would under similar circumstances.

Companies and Employees -- courts have
found companies liable for hiring and retaining
employees known to be violent, when those
employees later injured co-workers.

Negligence per se -- in special cases,
legislatures set a minimum standard for
certain groups of people (esp. children).
When a violation of that statute hurts a
member of that group, the duty is breached.
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Business Law and the Legal Environment for a New Century
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Factual Cause & Foreseeable Harm
 Factual Cause -- if the defendant’s breach
ultimately led to the injury, he is liable.
• Does not have to be the immediate cause of
injury, but must be the first in the direct line.
 Foreseeable Harm -- to be liable, this type
of harm must have been foreseeable.
• The defendant does not have to know exactly
what would happen -- just the type of event.
 Res Ipsa Loquitur -- in a few cases, the
defendant must prove he was NOT
negligent or the facts imply that his
negligence caused the injury.
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Business Law and the Legal Environment for a New Century
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Example: Factual Cause & Foreseeable
Harm
Mechanic fails
to fix customer’s
brakes, which
causes...
Car
accident,
car hitting
bicyclist
Car accident,
car
does not hit
bicyclist
Car
accident,
car hitting
bicyclist
Noise from
accident startles
someone who falls
out a window
Bicyclist hits
pothole and
crashes
Mechanic is
liable to
cyclist
Mechanic is
NOT liable
for falling
person
Mechanic is
NOT liable
to cyclist
Factual
cause and
foreseeable
type of injury
Factual
cause, but
no
foreseeable
type of injury
No
factual
cause
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Business Law and the Legal Environment for a New Century
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Injury & Damages
 Injury -- plaintiff must show genuine injury
• Future injury may be compensated, but must
be determined at the time of trial.
 A bystander, unharmed physically, may
recover for emotional distress if...
• She was near the scene of the injury,
• Seeing the injury caused immediate shock, and
• She is a close relative of the (physical) victim
 Damages -- are usually compensatory,
designed to restore what was lost. In
unusual cases, they may be punitive.
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Business Law and the Legal Environment for a New Century
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Negligence
 Contributory Negligence
• In a few states, if the plaintiff is AT ALL
negligent, he cannot recover damages from
the defendant.
 Comparative Negligence
• In most states, if the plaintiff is negligent, a
percentage of negligence is applied to both
the defendant and the plaintiff.
• The plaintiff can recover from the defendant to
the percentage that the defendant is negligent.
• In some cases, a plaintiff found to be more
than 50% negligent cannot recover at all.
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Business Law and the Legal Environment for a New Century
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Strict Liability
Some activities are so dangerous that the law imposes
a high burden on them. This is called strict liability.
 Defective Products-- may incur strict liability.
 Ultrahazardous Activities -- defendants are
virtually always held liable for harm.
• What is ultrahazardous? Includes using harmful
chemicals, explosives and keeping wild animals.
• Plaintiff does not have to prove breach of duty or
foreseeable harm.
• Comparative negligence does not apply -defendant engaging in ultrahazardous activity is
wholly liable.
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Business Law and the Legal Environment for a New Century
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“When someone’s person or
property is hurt, how far should
society extend liability? The law
has struggled for centuries to
find compensation for the injured
without making every citizen the
insurer of all others.”
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Business Law and the Legal Environment for a New Century
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