T
he intentional torts discussed
in Chapter 6 all involve acts
that the tortfeasor (the one
committing the tort) intended to
commit. In this chapter, we
examine the tort of negligence,
which involves acts that depart
from a reasonable standard of
care and therefore create an
unreasonable risk of harm to
others. Negligence suits are
probably the most prevalent type
of lawsuits brought against
businesses today. It is therefore
essential that businesspersons
understand their potential liability
for negligent acts. In the
concluding pages of this chapter,
we also look at another basis for
liability in tort—strict liability.
Under this tort doctrine, liability
does not depend on the actor’s
negligence or intent to harm, but
on the breach of an absolute duty
to make something safe.
To succeed in a negligence action,the plaintiff must
prove each of the following:
Negligence
In contrast to intentional torts, in torts involving
negligence, the tortfeasor neither wishes to bring
about the consequences of the act nor believes that
they will occur. The actor’s conduct merely creates a
risk of such consequences.If no risk is created,there is
no negligence. Moreover, the risk must be foreseeable;
that is,it must be such that a reasonable person engaging in the same activity would anticipate the risk and
guard against it. In determining what is reasonable
conduct, courts consider the nature of the possible
harm. Creating a very slight risk of a dangerous explosion might be unreasonable, whereas creating a distinct possibility of someone’s burning his or her fingers
on a stove might be reasonable.
Many of the actions discussed in the chapter on
intentional torts constitute negligence if the element
of intent is missing (or cannot be proved). Suppose
that Juarez walks up to Natsuyo and intentionally
shoves her.Natsuyo falls and breaks her arm as a result.
In this situation, Juarez has committed an intentional
tort (battery). If Juarez carelessly bumps into Natsuyo,
however, and she falls and breaks her arm as a result,
Juarez’s action constitutes negligence. In either situation, Juarez has committed a tort.
144
1. That the defendant owed a duty of care to the
plaintiff.
2. That the defendant breached that duty.
3. That the plaintiff suffered a legally recognizable
injury.
4. That the defendant’s breach caused the plaintiff’s
injury.
We discuss here each of these four elements of
negligence.
The Duty of Care and Its Breach
Central to the tort of negligence is the concept of a
duty of care. This concept arises from the notion that
if we are to live in society with other people, some
actions can be tolerated and some cannot, and some
actions are reasonable and some are not. The basic
principle underlying the duty of care is that people are
free to act as they please so long as their actions do
not infringe on the interests of others.
When someone fails to comply with the duty to
exercise reasonable care,a potentially tortious act may
have been committed. Failure to live up to a standard
of care may be an act (setting fire to a building) or an
omission (neglecting to put out a campfire). It may be
145
a careless act or a carefully performed but nevertheless dangerous act that results in injury. Courts consider the nature of the act (whether it is outrageous or
commonplace), the manner in which the act is performed (heedlessly versus cautiously), and the nature
of the injury (whether it is serious or slight) in determining whether the duty of care has been breached.
The Reasonable Person Standard Tort law
measures duty by the reasonable person standard.
In determining whether a duty of care has been
breached, for example, the courts ask how a reasonable person would have acted in the same circumstances. The reasonable person standard is said to be
(though in an absolute sense it cannot be) objective.It
is not necessarily how a particular person would act.It
is society’s judgment of how an ordinarily prudent person should act. If the so-called reasonable person
existed, he or she would be careful, conscientious,
even tempered, and honest. That individuals are
required to exercise a reasonable standard of care in
their activities is a pervasive concept in business law,
and many of the issues discussed in subsequent chapters of this text have to do with this duty.
In negligence cases, the degree of care to be exercised varies,depending on the defendant’s occupation
or profession, her or his relationship with the plaintiff,
and other factors. Generally, whether an action constitutes a breach of the duty of care is determined on a
case-by-case basis.The outcome depends on how the
judge (or jury, if it is a jury trial) decides a reasonable
person in the position of the defendant would act in
the particular circumstances of the case. In the following subsections, we examine the degree of care typically expected of landowners and professionals.
Duty of Landowners Landowners are expected
to exercise reasonable care to protect individuals coming onto their property from harm. In some jurisdictions, landowners may even have a duty to protect
trespassers against certain risks. Landowners who rent
or lease premises to tenants are expected to exercise
reasonable care to ensure that the tenants and their
C A S E 7.1
guests are not harmed in common areas, such as stairways, entryways, and laundry rooms (see Chapter 48).
Duty to Warn Business Invitees of Risks.
Retailers and other firms that explicitly or implicitly
invite persons to come onto their premises are usually
charged with a duty to exercise reasonable care to protect these business invitees. For example, if you
entered a supermarket, slipped on a wet floor, and sustained injuries as a result, the owner of the supermarket would be liable for damages if, when you slipped,
there was no sign warning that the floor was wet. A
court would hold that the business owner was negligent because the owner failed to exercise a reasonable degree of care in protecting the store’s customers
against foreseeable risks about which the owner knew
or should have known. That a patron might slip on the
wet floor and be injured as a result was a foreseeable
risk, and the owner should have taken care to avoid
this risk or warn the customer of it.1
Obvious Risks Provide an Exception. Some risks,
of course,are so obvious that an owner need not warn
of them. For example, a business owner does not need
to warn customers to open a door before attempting to
walk through it. Other risks, however, even though they
may seem obvious to a business owner, may not be so
in the eyes of another, such as a child. For example, a
hardware store owner may not think it is necessary to
warn customers that, if climbed, a stepladder leaning
against the back wall of the store could fall down and
harm them. It is possible, though, that a child could tip
the ladder over while climbing it and be hurt as a
result.
The issue in the following case was whether the
obviousness of the existence of wet napkins on the
floor of a nightclub obviated the owner’s duty to its customers to maintain the premises in a safe condition.
1. A business owner can warn of a risk in a number of ways; for
example, to warn of a hole in the business’s parking lot, the
owner could place a sign, traffic cone, sawhorse, board, or the
like near the hole.
Izquierdo v. Gyroscope, Inc.
District Court of Appeal of Florida, Fourth District, 2007. 946 So.2d 115.
•
Background and Facts Giorgio’s Grill in Hollywood, Florida, is a restaurant that becomes a
nightclub after hours. At those times, traditionally, as Giorgio’s manager knew, the wait staff and customers
CA SE CON TI N U ES
146
C A S E 7 . 1 C O N TIN U E D
threw paper napkins into the air as the music played. The napkins landed on the floor, but no one picked
them up. If they became too deep, customers pushed them to the side. Because drinks were occasionally spilled, sometimes the napkins were wet. One night, Jane Izquierdo went to Giorgio’s to meet a
friend. She had been to the club five or six times and knew of the napkin-throwing tradition. She had one
drink and went to the restroom. On her return, she slipped and fell, breaking her leg. After surgery, she
relied on a wheelchair for three months and continued to suffer pain. She filed a suit in a Florida state
court against Gyroscope, Inc., the owner of Giorgio’s, alleging negligence. A jury returned a verdict in favor
of the defendant, and Izquierdo filed a motion for a new trial, which the court denied. She appealed to
a state intermediate appellate court.
IN THE LANGUAGE OF THE COURT
WARNER, J. [Judge]
* * * *
We conclude that the trial court abused its discretion in denying the motion for new
trial as the verdict finding no negligence on the part of the defendant is contrary to the undisputed
evidence in the case.The testimony regarding negligence from both Izquierdo and her fiancé was
not conflicting nor was it impeached [contradicted]. More importantly, the manager of the restaurant admitted that permitting the wet napkins to remain on the floor was a hazardous condition.
Although the defendant argued * * * that Izquierdo did not know how she fell, the circumstantial evidence included her testimony that she slipped, went down on a wet floor, and found
napkins on her shoes.The inference that the wet napkins on the floor caused her fall clearly was
the only reasonable inference which could be drawn from the facts presented. The defendant
offered no contrary interpretation consistent with the facts proved.
We are further persuaded that the evidence of the defendant’s negligence was clear and obvious by a reading of [Florida Statutes Section] 768.0710(1), which provides:
The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which
includes reasonable efforts to keep the premises free from transitory foreign objects or substances that
might foreseeably give rise to loss, injury, or damage.
* * * [T]he existence of a foreign substance on the floor of business premises that causes
a customer to fall and be injured is not a safe condition * * * .[A] business owner owes a duty
to its invitees to make reasonable efforts to keep transitory foreign substances off the floor, which
would include napkins. Failure to do so would be negligence. [Emphasis added.]
Further, although Giorgio’s claimed that the napkin-throwing was known by Izquierdo and the
existence of napkins on the floor was obvious, this would merely discharge the landowner’s duty
to warn. It does not discharge the landowner’s duty to maintain the premises in a reasonably safe
condition. * * *
* * * *
* * * [T]he record in the present case shows at least some negligence on the part of the
defendant, even though a jury could find that Izquierdo was negligent herself. The jury’s verdict
finding no negligence on the defendant’s part is contrary to the manifest [obvious] weight of the
evidence, and the trial court abused its discretion in denying the motion for a new trial.
•
Decision and Remedy The state intermediate appellate court reversed the lower court’s
decision, concluding that “the trial court abused its discretion” in denying Izquierdo’s motion. The
appellate court remanded the case for a new trial.
• What If the Facts Were Different? Should the result in this case have been different if,
in all the years that the napkin-throwing tradition existed, no one had ever fallen on the napkins
before Izquierdo? Why or why not?
•
The Legal Environment Dimension Does a plaintiff’s knowledge of a dangerous condition erase a defendant’s potential liability for negligently permitting the dangerous condition to
exist? Explain.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
147
Duty of Professionals If an individual has
knowledge or skill superior to that of an ordinary person, the individual’s conduct must be consistent with
that status. Professionals—including physicians, dentists, architects, engineers, accountants, and lawyers,
among others—are required to have a standard minimum level of special knowledge and ability.Therefore,
in determining what constitutes reasonable care in the
case of professionals,the court takes their training and
expertise into account. In other words, an accountant
cannot defend against a lawsuit for negligence by stating,“But I was not familiar with that general principle
of accounting.”
If a professional violates his or her duty of care
toward a client, the client may bring a suit against the
professional, alleging malpractice, which is essentially professional negligence. For example, a patient
might sue a physician for medical malpractice. A client
might sue an attorney for legal malpractice. The liability of professionals will be examined in further detail
in Chapter 51.
No Duty to Rescue Although the law requires
individuals to act reasonably and responsibly in their
relations with one another, if a person fails to come to
the aid of a stranger in peril, that person will not be
considered negligent under tort law. For example,
assume that you are walking down a city street and see
a pedestrian about to step directly in front of an
oncoming bus.You realize that the person has not seen
the bus and is unaware of the danger. Do you have a
legal duty to warn that individual? No. Although most
people would probably concede that, in this situation,
the observer has an ethical duty to warn the other, tort
law does not impose a general duty to rescue others in
peril.Duties may be imposed in regard to certain types
of peril, however. For example, most states require a
motorist involved in an automobile accident to stop
and render aid. Failure to do so is both a tort and a
crime.
The Injury Requirement and Damages
To recover damages (receive compensation), the
plaintiff in a tort lawsuit must prove that she or he suffered a legally recognizable injury. In other words, the
plaintiff must have suffered some loss, harm, wrong, or
invasion of a protected interest.This is true in lawsuits
for intentional torts as well as lawsuits for negligence.
Essentially,the purpose of tort law is to compensate for
legally recognized harms and injuries resulting from
wrongful acts. If no harm or injury results from a given
negligent action,there is nothing to compensate—and
no tort exists.
For example,if you carelessly bump into a passerby,
who stumbles and falls as a result,you may be liable in
tort if the passerby is injured in the fall. If the person is
unharmed, however, there normally can be no suit for
damages because no injury was suffered. Although the
passerby might be angry and suffer emotional distress,
few courts recognize negligently inflicted emotional
distress as a tort unless it results in some physical disturbance or dysfunction.
Compensatory damages are the norm in negligence cases. Occasionally, though, a court will award
punitive damages if the defendant’s conduct was
grossly negligent, meaning that the defendant intentionally failed to perform a duty with reckless disregard of the consequences to others.
Causation
Another element necessary to the tort of negligence—
and intentional torts as well—is causation. If a person
breaches a duty of care and someone suffers injury,the
wrongful activity must have caused the harm for a tort
to have been committed.
Causation in Fact and Proximate Cause
In deciding whether the requirement of causation is
met, the court must address two questions:
1. Is there causation in fact? Did the injury occur
because of the defendant’s act, or would it have
occurred anyway? If an injury would not have
occurred without the defendant’s act, then there is
causation in fact. Causation in fact can usually be
determined by use of the but for test:“but for” the
wrongful act, the injury would not have occurred.
This test determines whether there was an actual
cause-and-effect relationship between the act and
the injury suffered.In theory,causation in fact is limitless.One could claim,for example,that “but for”the
creation of the world, a particular injury would not
have occurred. Thus, as a practical matter, the law
has to establish limits, and it does so through the
concept of proximate cause.
2. Was the act the proximate, or legal, cause of the
injury? Proximate cause, or legal cause, exists
when the connection between an act and an injury
is strong enough to justify imposing liability.
Consider an example. Ackerman carelessly leaves a
campfire burning.The fire not only burns down the
148
forest but also sets off an explosion in a nearby
chemical plant that spills chemicals into a river,
killing all the fish for a hundred miles downstream
and ruining the economy of a tourist resort. Should
Ackerman be liable to the resort owners? To the
tourists whose vacations were ruined? These are
questions of proximate cause that a court must
decide.
Both questions must be answered in the affirmative
for liability in tort to arise. If a defendant’s action constitutes causation in fact but a court decides that the
action is not the proximate cause of the plaintiff’s
injury, the causation requirement has not been met—
C A S E 7.2
and the defendant normally will not be liable to the
plaintiff.
Foreseeability Questions of proximate cause are
linked to the concept of foreseeability because it
would be unfair to impose liability on a defendant
unless the defendant’s actions created a foreseeable
risk of injury. Probably the most cited case on the concept of foreseeability and proximate cause is the
Palsgraf case.The question before the court was as follows: Does the defendant’s duty of care extend only to
those who may be injured as a result of a foreseeable
risk, or does it extend also to persons whose injuries
could not reasonably be foreseen?
Palsgraf v. Long Island Railroad Co.
Court of Appeals of New York, 1928. 248 N.Y. 339, 162 N.E. 99.
• Background and Facts The plaintiff, Helen Palsgraf, was waiting for a train on a station plat-
form. A man carrying a package was rushing to catch a train that was moving away from a platform across
the tracks from Palsgraf. As the man attempted to jump aboard the moving train, he seemed unsteady
and about to fall. A railroad guard on the car reached forward to grab him, and another guard on the platform pushed him from behind to help him board the train. In the process, the man’s package, which
(unknown to the railroad guards) contained fireworks, fell on the railroad tracks and exploded. There was
nothing about the package to indicate its contents. The repercussions of the explosion caused scales at
the other end of the train platform to fall on Palsgraf, causing injuries for which she sued the railroad company. At the trial, the jury found that the railroad guards had been negligent in their conduct. The railroad
company appealed. The appellate court affirmed the trial court’s judgment, and the railroad company
appealed to New York’s highest state court.
IN THE LANGUAGE OF THE COURT
CARDOZO, C.J. [Chief Justice]
* * * *
The conduct of the defendant’s guard, if a wrong in its relation to the holder of the
package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was
not negligence at all. * * *
* * * *
* * * What the plaintiff must show is “a wrong” to herself; i.e., a violation of her own right,
and not merely a wrong to someone else[.] * * * The risk reasonably to be perceived defines
the duty to be obeyed[.] * * * Here,by concession,there was nothing in the situation to suggest
to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through
the station. If the guard had thrown it down knowingly and willfully, he would not have threatened
the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved,
even then, an unreasonable probability of invasion of her bodily security. Liability can be no
greater where the act is inadvertent. [Emphasis added.]
* * * One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that
the act as to him had possibilities of danger so many and apparent as to entitle him to be protected
against the doing of it though the harm was unintended.* * * The victim does not sue * * *
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CA SE 7 .2 C O N TIN U E D
to vindicate an interest invaded in the person of another. * * * He sues for breach of a duty
owing to himself.
* * * [To rule otherwise] would entail liability for any and all consequences,however novel
or extraordinary.
• Decision and Remedy Palsgraf’s complaint was dismissed. The railroad had not been negligent toward her because injury to her was not foreseeable. Had the owner of the fireworks been
harmed, and had he filed suit, there could well have been a different result.
• Impact of This Case on Today’s Law The Palsgraf case established foreseeability as the
test for proximate cause. Today, the courts continue to apply this test in determining proximate
cause—and thus tort liability for injuries. Generally, if the victim of a harm or the consequences of a
harm done are unforeseeable, there is no proximate cause.
• International Considerations Differing Standards of Proximate Cause The con-
cept of proximate cause is common among nations around the globe, but its application differs
from country to country. French law uses the phrase “adequate cause.” An event breaks the chain
of adequate cause if the event is both unforeseeable and irresistible. England has a “nearest
cause” rule that attributes liability based on which event was nearest in time and space. Mexico
bases proximate cause on the foreseeability of the harm but does not require that an event be reasonably foreseeable.
• The Global Dimension What would be the advantages and disadvantages of a universal
principle of proximate cause applied everywhere by all courts in all relevant cases? Discuss.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Defenses to Negligence
The basic defenses to liability in negligence cases
are (1) assumption of risk,(2) superseding cause,and
(3) contributory and comparative negligence.
Additionally, defendants often defend against negligence claims by asserting that the plaintiffs failed to
prove the existence of one or more of the required
elements for negligence.
Assumption of Risk
A plaintiff who voluntarily enters into a risky situation,
knowing the risk involved, will not be allowed to
recover. This is the defense of assumption of risk.
The requirements of this defense are (1) knowledge of
the risk and (2) voluntary assumption of the risk.This
defense is frequently asserted when the plaintiff is
injured during recreational activities that involve
known risk, such as skiing and parachuting.
The risk can be assumed by express agreement, or
the assumption of risk can be implied by the plaintiff’s
knowledge of the risk and subsequent conduct. For
example, a driver entering an automobile race knows
there is a risk of being injured or killed in a crash.The
driver has assumed the risk of injury. Of course, the
plaintiff does not assume a risk different from or
greater than the risk normally carried by the activity.In
our example, the race driver assumes the risk of being
injured in the race but not the risk that the banking in
the curves of the racetrack will give way during the
race because of a construction defect.
Risks are not deemed to be assumed in situations
involving emergencies. Neither are they assumed
when a statute protects a class of people from harm
and a member of the class is injured by the harm. For
example, courts have generally held that an employee
cannot assume the risk of an employer’s violation of
safety statutes passed for the benefit of employees.
In the following case,a ball kicked by a player practicing on a nearby field injured a man who was
attending his son’s soccer tournament. The question
before the court was whether a bystander who was
not watching a soccer match at the time of injury had
nevertheless assumed the risk of being struck by a
wayward ball.
150
EXTENDED
Sutton v. Eastern New York Youth Soccer Association, Inc.
C A S E 7.3
New York Supreme Court, Appellate Division, Third Department, 2004.
8 A.D.3d 855, 779 N.Y.S.2d 149.
SPAIN, J. [Justice]
* * * *
While attending a soccer tournament in which his son was a participant, plaintiff D. James
Sutton (hereinafter plaintiff) was struck by a soccer ball kicked by a 16-year-old boy practicing on
one of the soccer fields between games.Thereafter,plaintiff and his wife * * * commenced this
personal injury action [in a New York state court] against organizations and teams sponsoring
and/or participating in the tournament, as well as the boy who kicked the ball, seeking to recover
damages for injuries he sustained to his knee as a result of the accident. [The] Court granted summary judgment to all defendants, finding that plaintiff had assumed the risk of being struck by a
soccer ball, and dismissed the complaint. * * *
According to plaintiff, May 30, 1999 was a sunny, exceedingly hot day and his son, a member of
defendant Latham Circle Soccer Club, was participating in a Highland Soccer Club Tournament at
Maalyck Park in the Town of Glenville, Schenectady County [in New York]. Plaintiff attended as a
spectator and had just finished watching his son’s second game of the day from one of the sidelines when he walked to the end of the field to a tent which had been erected by his son’s team
some 30 to 40 yards behind the goal line in order to provide shade for the players while they were
not engaged on the field. While walking past the field, plaintiff noticed six or seven players from
defendant Guilderland Soccer Club on the field “hacking around” and warming up for the next
game. Once under the tent, plaintiff was in the process of removing a sandwich from his son’s
cooler when he was struck in the chest and knocked off his feet by a soccer ball kicked from the
field by a Guilderland player, defendant Ian Goss.
The first argument raised on appeal is that plaintiff was not a voluntary spectator of the soccer
match at the point in time when he was injured; accordingly, plaintiffs argue, he cannot be found
to have assumed the risk of injury. In support of this contention, plaintiffs point to the fact that a
game was not in progress on the field and that, when injured, he was standing some 30 to 40 yards
away from the field of play. We are unpersuaded. The doctrine of assumption of risk can apply not
only to participants of sporting events,but to spectators and bystanders who are not actively engaged
in watching the event at the time of their injury. Indeed, the spectator at a sporting event, no less
than the participant, accepts the dangers that inhere in it so far as they are obvious and necessary,
just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the
* * * chance of contact with the ball * * * . The timorous [nervous] may stay at home.
Here, plaintiff admitted that he was at the tournament as a spectator and was aware that players
were practicing on the field when he walked past them. Furthermore, although plaintiff’s son’s
team had just finished a game, the tournament involved hundreds of players with teams playing at
various times on at least five fields and plaintiff had been at the tournament all morning, surrounded by this activity. Under these circumstances, we find that plaintiff’s presence at the tournament rendered him a voluntary spectator to the soccer play in progress throughout the day.
[Emphasis added.]
Next, plaintiffs contend that the placement of the tent behind the goal line of one of the soccer
fields enhanced the risk to spectators at the game, thereby undermining the argument that plaintiff assumed the risk of getting struck by a ball. Plaintiffs rely on evidence * * * that spectators
at soccer games should, for their safety, observe the game from the sidelines and that standing
behind the goal line increases the chance of being struck by a kicked ball.This Court has not previously had occasion to address directly the duty of care owed to spectators at a soccer match.
Existing jurisprudence surrounding the duty owed to spectators at a baseball game, though not
controlling given the differences in the games of baseball and soccer,is nonetheless helpful to our
analysis.
* * * Taking into consideration the independence of spectators who might want to watch a
[baseball] game from an unprotected vantage point, and recognizing that even after the exercise
of reasonable care, some risk of being struck by a ball will continue to exist, * * * the proprietor of a ball park need only provide screening for the area of the field behind home plate where
the danger of being struck by a ball is the greatest. * * * [T]he municipal owner of a baseball
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CA SE 7 .3 C O N TIN U E D
park which has provided adequate space for spectators to view the game from behind the backstop [does] not owe a duty to install screens or netting above a fence running along the first baseline to protect spectators walking in the area between the fence and bathrooms against the risk of
being struck by foul balls. * * *
Unlike baseball parks, outdoor soccer fields typically have no protective screening or fencing
for spectators,presumably because the ball is larger and moves slower,enabling the spectator who
observes a ball coming his or her way to avoid being struck. Indeed, plaintiffs do not suggest that,
in the exercise of reasonable care,defendants had a duty to provide any protective measures along
the sidelines. Instead, plaintiffs assert that defendants unreasonably enhanced the risk of injury to
plaintiff by essentially inviting him to stand at the end of the field through their placement of the
team tent.Although we agree that a factual question has been presented as to whether the risk of
being struck by a soccer ball is enhanced when a spectator is standing behind the goal line, we
find that question immaterial to the disposition of this action.There is no suggestion that there was
not adequate room for the spectators to remain along the sidelines; in fact, plaintiff was seated
along the sidelines prior to moving to the tent to get a sandwich.Accordingly, just as the owner of
a baseball park is not responsible for the spectator who leaves his or her seat and walks through
a potentially more hazardous zone to reach a bathroom or concession stand,thereby assuming the
open and obvious risk of being hit by a ball,defendants here cannot be held responsible for the risk
assumed by plaintiff when he,aware that players were active on the field,left the sidelines and stood
in the tent positioned in the arguably more dangerous zone behind the goal line. [Emphasis added.]
We also reject plaintiffs’ contention that the risk of being struck while some 40 yards away from
a field upon which no formal game was in progress was not open and obvious. In the context of a
sporting event, where the risks are fully comprehended or perfectly obvious, a participant will be
deemed to have consented to such risk. As discussed, plaintiff had been in attendance for hours at
a tournament where soccer games were almost continuously in progress and had actual knowledge that players were kicking the ball around on the field when he opted to move to the tent
behind the goal line.Further,he was familiar with the game of soccer having admittedly been a frequent spectator of the game for over 14 years. Under these circumstances, we hold that plaintiff
should have appreciated the risk of being hit by an errant [stray] soccer ball when he opted to
enter the tent in the area behind the goal. [Emphasis added.]
* * * *
ORDERED that the order is affirmed * * * .
1. What is the basis underlying the defense of assumption of risk, and how does that basis
support the court’s decision in the Sutton case?
2. Had the plaintiffs prevailed, how might the sites for soccer matches be different today?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Superseding Cause
An unforeseeable intervening event may break the
causal connection between a wrongful act and an
injury to another. If so, the intervening event acts as a
superseding cause—that is, it relieves a defendant of
liability for injuries caused by the intervening event.
For example, suppose that Derrick, while riding his
bicycle, negligently hits Julie, who is walking on the
sidewalk. As a result of the impact, Julie falls and fractures her hip. While she is waiting for help to arrive, a
small aircraft crashes nearby and explodes, and some
of the fiery debris hits her,causing her to sustain severe
burns.Derrick will be liable for the damages caused by
Julie’s fractured hip, but normally he will not be liable
for the injuries caused by the plane crash—because
the risk of a plane crashing nearby and injuring Julie
was not foreseeable.
Contributory and
Comparative Negligence
All individuals are expected to exercise a reasonable
degree of care in looking out for themselves. In the
past,under the common law doctrine of contributory
negligence, a plaintiff who was also negligent (failed
152
to exercise a reasonable degree of care) could not
recover anything from the defendant. Under this rule,
no matter how insignificant the plaintiff’s negligence
was relative to the defendant’s negligence, the plaintiff would be precluded from recovering any damages. Today, only a few jurisdictions still hold to this
doctrine.
In the majority of states, the doctrine of contributory negligence has been replaced by a comparative
negligence standard. The comparative negligence
standard enables both the plaintiff’s and the defendant’s negligence to be computed and the liability for
damages distributed accordingly. Some jurisdictions
have adopted a “pure” form of comparative negligence that allows the plaintiff to recover damages
even if her or his fault is greater than that of the defendant. Many states’ comparative negligence statutes,
however, contain a “50 percent” rule, under which the
plaintiff recovers nothing if she or he was more than
50 percent at fault.Under this rule,a plaintiff who is 35
percent at fault could recover 65 percent of his or her
damages, but a plaintiff who is 65 percent (over 50
percent) at fault could recover nothing.
Special Negligence
Doctrines and Statutes
A number of special doctrines and statutes relating to
negligence are also important. We examine a few of
them here.
Res Ipsa Loquitur
Generally, in lawsuits involving negligence, the plaintiff
has the burden of proving that the defendant was negligent. In certain situations, however, the courts may
presume that negligence has occurred, in which case
the burden of proof rests on the defendant—that is,the
defendant must prove that he or she was not negligent.
The presumption of the defendant’s negligence is
known as the doctrine of res ipsa loquitur,2 which
translates as “the facts speak for themselves.”
This doctrine is applied only when the event creating the damage or injury is one that ordinarily does
not occur in the absence of negligence. For example,
suppose that a person undergoes abdominal surgery
and following the surgery has nerve damage in her
2. Pronounced rihz ihp-suh low-kwuh-duhr.
spine near the area of the operation. In this situation,
the person can sue the surgeon under a theory of res
ipsa loquitur, because the injury would not have
occurred in the absence of the surgeon’s negligence.3
For the doctrine of res ipsa loquitur to apply, the event
must have been within the defendant’s power to control, and it must not have been due to any voluntary
action or contribution on the part of the plaintiff.
Negligence Per Se
Certain conduct, whether it consists of an action or a
failure to act, may be treated as negligence per se
(“in or of itself”). Negligence per se may occur if an
individual violates a statute or an ordinance providing
for a criminal penalty and that violation causes
another to be injured. The injured person must prove
(1) that the statute clearly sets out what standard of
conduct is expected, when and where it is expected,
and of whom it is expected; (2) that he or she is in the
class intended to be protected by the statute; and
(3) that the statute was designed to prevent the type of
injury that he or she suffered.The standard of conduct
required by the statute is the duty that the defendant
owes to the plaintiff,and a violation of the statute is the
breach of that duty.
For example, a statute provides that anyone who
operates a motor vehicle on a public highway and fails
to give full time and attention to the operation of that
vehicle is guilty of inattentive driving. After an accident
involving two motor vehicles,one of the drivers is cited
for and later found guilty of violating the inattentive
driver statute. If the other driver was injured and subsequently files a lawsuit, a court could consider the violation of the statute to constitute negligence per se. The
statute set forth a standard of attentive driving specifically to protect the safety of the traveling public.4
“Danger Invites Rescue” Doctrine
Under the “danger invites rescue” doctrine, a person
who is injured while going to someone else’s rescue
can sue the person who caused the dangerous situation. The original wrongdoer is liable not only for the
injuries to the person who was placed in danger, but
also for injuries to an individual attempting a rescue.
The idea is that the rescuer should not be held liable
for any damages because he or she did not cause the
3. See, for example, Gubbins v. Hurson, 885 A.2d 269 (D.C. 2005).
4. See, for example, Wright v. Moore, 931 A.2d 405 (Del.Supr.
2007).
153
danger and because danger invites rescue. For example, Ludlam, while driving down a street, fails to see a
stop sign because he is trying to end a squabble
between his two young children in the car’s backseat.
Salter, on the curb near the stop sign, realizes that
Ludlam is about to hit a pedestrian walking across the
street at the intersection. Salter runs into the street to
push the pedestrian out of the way, and Ludlam’s vehicle hits Salter instead. Ludlam will be liable for Salter’s
injury as the rescuer,as well as for any injuries the other
pedestrian (or any bystanders) may have sustained.
Another category of torts is called strict liability, or
liability without fault. Intentional torts and torts of negligence involve acts that depart from a reasonable standard of care and cause injuries. Under the doctrine of
strict liability,a person who engages in certain activities
can be held responsible for any harm that results to
others even if the person used the utmost care.
Special Negligence Statutes
Development of Strict Liability
A number of states have enacted statutes prescribing
duties and responsibilities in certain circumstances.
For example, most states now have what are called
Good Samaritan statutes.5 Under these statutes, persons who are aided voluntarily by others cannot turn
around and sue the “Good Samaritans”for negligence.
These laws were passed largely to protect physicians
and other medical personnel who volunteer their services for free in emergency situations to those in need,
such as individuals hurt in car accidents.6
Many states have also passed dram shop acts,7
under which a tavern owner or bartender may be held
liable for injuries caused by a person who became
intoxicated while drinking at the bar or who was
already intoxicated when served by the bartender.
Some states’ statutes also impose liability on social
hosts (persons hosting parties) for injuries caused by
guests who became intoxicated at the hosts’ homes.
Under these statutes,it is unnecessary to prove that the
tavern owner, bartender, or social host was negligent.
Sometimes, the definition of a “social host” is broadly
fashioned. For example, in a New York case, the court
held that the father of a minor who hosted a “bringyour-own-keg” party could be held liable for injuries
caused by an intoxicated guest.8
The modern concept of strict liability traces its origins,
in part, to the 1868 English case of Rylands v. Fletcher.9
In the coal-mining area of Lancashire, England, the
Rylands, who were mill owners, had constructed a
reservoir on their land.Water from the reservoir broke
through a filled-in shaft of an abandoned coal mine
nearby and flooded the connecting passageways in an
active coal mine owned by Fletcher. Fletcher sued the
Rylands, and the court held that the defendants (the
Rylands) were liable, even though the circumstances
did not fit within existing tort liability theories. The
court held that a “person who for his own purposes
brings on his land and collects and keeps there anything likely to do mischief if it escapes ...is prima facie
[on initial examination] answerable for all the damage
which is the natural consequence of its escape.”
British courts liberally applied the doctrine that
emerged from the Rylands v.Fletcher case.Initially,few
U.S. courts accepted this doctrine, presumably
because the courts were worried about its effect on
the expansion of American business. Today, however,
the doctrine of strict liability is the norm rather than
the exception.
5. These laws derive their name from the Good Samaritan story
in the Bible. In the story, a traveler who had been robbed and
beaten lay along the roadside, ignored by those passing by.
Eventually, a man from the region of Samaria (the “Good
Samaritan”) stopped to render assistance to the injured person.
6. See, for example, the discussions of various state statutes in
Chamley v. Khokha, 730 N.W.2d 864 (N.D. 2007), and Mueller v.
McMillian Warner Insurance Co., 2006 WI 54, 290 Wis.2d 571, 714
N.W.2d 183 (2006).
7. Historically, a dram was a small unit of liquid, and spirits were
sold in drams. Thus, a dram shop was a place where liquor was
sold in drams.
8. Rust v. Reyer, 91 N.Y.2d 355, 693 N.E.2d 1074, 670 N.Y.S.2d 822
(1998).
Strict Liability
Abnormally Dangerous Activities
Strict liability for damages proximately caused by an
abnormally dangerous, or ultrahazardous, activity is
one application of strict liability. Courts apply the doctrine of strict liability in these situations because of the
extreme risk of the activity. Abnormally dangerous
activities are those that involve a high risk of serious
harm to persons or property that cannot be completely guarded against by the exercise of reasonable
care—activities such as blasting or storing explosives.
Even if blasting with dynamite is performed with all
9. 3 L.R.–E & I App. [Law Reports, English & Irish Appeal Cases]
(H.L. [House of Lords] 1868).
154
reasonable care, there is still a risk of injury. Balancing
that risk against the potential for harm, it seems reasonable to ask the person engaged in the activity to
pay for injuries caused by that activity. Although there
is no fault, there is still responsibility because of the
dangerous nature of the undertaking.
Other Applications of Strict Liability
Persons who keep wild animals are strictly liable for
any harm inflicted by the animals.The basis for applying strict liability is that wild animals, should they
escape from confinement, pose a serious risk of harm
to persons in the vicinity. An owner of domestic animals (such as dogs, cats, cows, or sheep) may be
strictly liable for harm caused by those animals if the
owner knew, or should have known, that the animals
were dangerous or had a propensity to harm others.
A significant application of strict liability is in the
area of product liability—liability of manufacturers
and sellers for harmful or defective products. Liability
here is a matter of social policy and is based on two
factors: (1) the manufacturing company can better
bear the cost of injury because it can spread the cost
throughout society by increasing prices of goods and
services, and (2) the manufacturing company is making a profit from its activities and therefore should
bear the cost of injury as an operating expense. We
will discuss product liability in greater detail in
Chapter 23. Strict liability is also applied in certain
types of bailments (a bailment exists when goods are
transferred temporarily into the care of another—see
Chapter 47).
Negligence and Strict Liability
Alaina Sweeney went to Ragged Mountain Ski Resort in New Hampshire with a friend.
Alaina went snow tubing down a snow-tube run designed exclusively for snow tubers.
There were no Ragged Mountain employees present in the snow-tube area to instruct Alaina on the
proper use of a snow tube. On her fourth run down the trail, Alaina crossed over the center line
between snow-tube lanes, collided with another snow tuber, and was injured. Alaina filed a negligence
action against Ragged Mountain seeking compensation for the injuries that she sustained. Two years
earlier, the New Hampshire state legislature had enacted a statute that prohibited a person who
participates in the sport of skiing from suing a ski-area operator for injuries caused by the risks inherent
in skiing. Using the information presented in the chapter, answer the following questions.
1. What defense will Ragged Mountain probably assert?
2. The central question in this case is whether the state statute establishing that skiers assume the risks
inherent in the sport bars Alaina’s suit. What would your decision be on this issue? Why?
3. Suppose that the court concludes that the statute applies only to skiing and does not apply to snow
tubing. Will Alaina’s lawsuit be successful? Explain.
4. Now suppose that the jury concludes that Alaina was partly at fault for the accident. Under what
theory might her damages be reduced in proportion to the degree to which her actions contributed
to the accident and her resulting injuries?
comparative negligence 152
negligence 144
contributory negligence 151
negligence per se 152
dram shop act 153
proximate cause 147
assumption of risk 149
duty of care 144
reasonable person standard 145
business invitee 145
Good Samaritan statute 153
res ipsa loquitur 152
causation in fact 147
malpractice 147
strict liability 153
155
7–1. Shannon’s physician gives her some
pain medication and tells her not to drive
after she takes it, as the medication induces
drowsiness. In spite of the doctor’s warning, Shannon
decides to drive to the store while on the medication.
Owing to her lack of alertness, she fails to stop at a traffic
light and crashes into another vehicle, causing a passenger in that vehicle to be injured. Is Shannon liable for the
tort of negligence? Explain fully.
7–2. QUESTION WITH SAMPLE ANSWER
Ruth carelessly parks her car on a steep hill,leaving the car in neutral and failing to engage the
parking brake.The car rolls down the hill and knocks down
an electric line. The sparks from the broken line ignite a
grass fire.The fire spreads until it reaches a barn one mile
away. The barn houses dynamite, and the burning barn
explodes,causing part of the roof to fall on and injure Jim,
a passing motorist.Which element of negligence is of the
greatest concern here? What legal doctrine resolves this
issue? Will Jim be able to recover damages from Ruth?
• For a sample answer to Question 7–2,
go to Appendix I at the end of this text.
7–3. Danny and Marion Klein were injured when part of a
fireworks display went astray and exploded near them.
They sued Pyrodyne Corp.,the pyrotechnic company that
was hired to set up and discharge the fireworks, alleging,
among other things, that the company should be strictly
liable for damages caused by the fireworks display. Will
the court agree with the Kleins? What factors will the
court consider in making its decision? Discuss fully.
7–4. Negligence Per Se. A North Carolina Department of
Transportation regulation prohibits the placement of
telephone booths within public rights-of-way. Despite this
regulation, GTE South, Inc., placed a booth in the right-ofway near the intersection of Hillsborough and Sparger
Roads in Durham County. A pedestrian, Laura Baldwin,
was using the booth when an accident at the intersection
caused a dump truck to cross the right-of-way and smash
into the booth. Was Baldwin within the class of persons
protected by the regulation? If so,did GTE’s placement of
the booth constitute negligence per se? Explain.
7–5. CASE PROBLEM WITH SAMPLE ANSWER
New Hampshire International Speedway, Inc.,
owned the New Hampshire International
Speedway, a racetrack next to Route 106 in Loudon, New
Hampshire. In August 1998, on the weekend before the
Winston Cup race, Speedway opened part of its parking
facility to recreational vehicles (RVs). Speedway voluntarily positioned its employee Frederick Neergaard at the
entrance to the parking area as a security guard and to
direct traffic. Leslie Wheeler, who was planning to attend
the race, drove an RV south on Route 106 toward
Speedway. Meanwhile, Dennis Carignan was also driving
south on Route 106 on a motorcycle, on which Mary
Carignan was a passenger. As Wheeler approached the
parking area,he saw Neergaard signaling him to turn left,
which he began to do. At the same time, Carignan
attempted to pass the RV on its left side,and the two vehicles collided. Mary sustained an injury to her right knee,
lacerations on her ankle, and a broken hip. She sued
Speedway and others for negligence. Which element of
negligence is at the center of this dispute? How is a court
likely to rule in this case, and why? [Carignan v. New
Hampshire International Speedway, Inc., 858 A.2d 536
(N.H. 2004)]
• To view a sample answer for Problem 7–6,
go to this book’s Web site at academic.
cengage.com/blaw/clarkson, select
“Chapter 7,” and click on “Case Problem
with Sample Answer.”
7–6. Negligence. In July 2004, Emellie Anderson hired
Kenneth Whitten, a licensed building contractor, to construct a two-story addition to her home.The bottom floor
was to be a garage and the second floor a home office.In
August,the parties signed a second contract under which
Whitten agreed to rebuild a deck and railing attached to
the house and to further improve the office. A later
inspection revealed gaps in the siding on the new garage,
nails protruding from incomplete framing, improper support for a stairway to the office, and gaps in its plywood
flooring. One post supporting the deck was cracked;
another was too short. Concrete had not been poured
underneath the old posts.A section of railing was missing,
and what was installed was warped, with gaps at the
joints. Anderson filed a suit in a Connecticut state court
against Whitten, alleging that his work was “substandard,
not to code, unsafe and not done in a [workmanlike]
manner.” Anderson claimed that she would have to pay
someone else to repair all of the work. Does Whitten’s
“work” satisfy the requirements for a claim grounded in
negligence? Should Anderson’s complaint be dismissed,
or should she be awarded damages? Explain. [Anderson
v.Whitten, 100 Conn.App. 730, 918 A.2d 1056 (2007)]
7–7. Defenses to Negligence. Neal Peterson’s entire family
skied,and Peterson started skiing at the age of two.In 2000,
at the age of eleven, Peterson was in his fourth year as a
member of a ski race team. After a race one morning in
February, Peterson continued to practice his skills through
the afternoon.Coming down a slope very fast,at a point at
which his skis were not touching the ground,Peterson collided with David Donahue. Donahue, a forty-three-year-old
advanced skier, was skating (skiing slowly) across the
slope toward the parking lot.Peterson and Donahue knew
that falls or collisions and accidents and injuries were possible with skiing. Donahue saw Peterson “split seconds”
before the impact,which knocked Donahue out of his skis
and down the slope ten or twelve feet.When Donahue saw
Peterson lying motionless nearby, he immediately sought
help. To recover for his injuries, Peterson filed a suit in a
156
Minnesota state court against Donahue, alleging negligence. Based on these facts, which defense to a claim of
negligence is Donahue most likely to assert? How is the
court likely to apply that defense and rule on Peterson’s
claim? Why? [Peterson ex rel. Peterson v. Donahue, 733
N.W.2d 790 (Minn.App. 2007)]
7–8. SPECIAL CASE ANALYSIS
Go to Case 7.3, Sutton v.Eastern New York Youth
Soccer Association, Inc., 8 A.D.3d 855, 779
N.Y.S.2d 149 (3 Dept. 2004), on pages 150–151. Read the
excerpt and answer the following questions.
(a) Issue: The focus in this case was the application of
the doctrine of assumption of risk to whom and in
what circumstances?
(b) Rule of Law: What are the requirements for an
injured person to be held liable for his or her injury
under the doctrine of assumption of risk?
(c) Applying the Rule of Law: How did the court evaluate
the facts in this case to assess liability under the doctrine of assumption of risk?
(d) Conclusion: Among the parties involved in this case,
who was held liable for the plaintiff’s injury and why?
7–9. A QUESTION OF ETHICS
Donald and Gloria Bowden hosted a late afternoon cookout at their home in South Carolina,
inviting mostly business acquaintances. Justin Parks, who
was nineteen years old, attended the party. Alcoholic beverages were available to all of the guests,even those who,
like Parks, were not minors but were underage. Parks consumed alcohol at the party and left with other guests. One
of these guests detained Parks at the guest’s home to give
Parks time to “sober up.” Parks then drove himself from this
guest’s home and was killed in a one-car accident. At the
time of his death, he had a blood alcohol content of 0.291
percent, which exceeded the state’s limit for driving a
motor vehicle.Linda Marcum,Parks’s mother,filed a suit in
a South Carolina state court against the Bowdens and others,alleging that they were negligent.[Marcum v.Bowden,
372 S.C. 452, 643 S.E.2d 85 (2007)]
(a) Considering the principles discussed in this chapter,
what are arguments in favor of,and opposed to,holding social hosts liable in this situation? Explain.
(b) The states vary widely in assessing liability and
imposing sanctions in the circumstances described
in this problem. Broadly, in other words, justice is not
equal for parents and other social hosts who serve
alcoholic beverages to underage individuals.Why?
7–10. VIDEO QUESTION
Go to this text’s Web site at academic.
cengage.com/blaw/clarkson, and select
“Chapter 7.” Click on “Video Questions” and view the
video titled Jaws. Then answer the following questions.
(a) In the video,the mayor (Murray Hamilton) and a few
other men try to persuade Chief Brody (Roy
Scheider) not to close the town’s beaches. If Brody
keeps the beaches open and a swimmer is injured or
killed because he failed to warn swimmers about
the potential shark danger,has Brody committed the
tort of negligence? Explain.
(b) Can Chief Brody be held liable for any injuries or
deaths to swimmers under the doctrine of strict liability? Why or why not?
(c) Suppose that Chief Brody goes against the mayor’s
instructions and warns townspeople to stay off the
beach. Nevertheless, several swimmers do not heed
his warning and are injured as a result.What defense
or defenses could Brody raise under these circumstances if he is sued for negligence?
You can find cases and articles on torts, including business torts, in the tort law library at the
Internet Law Library’s Web site. Go to
www.lawguru.com/ilawlib
Legal Research Exercises on the Web
Go to academic.cengage.com/blaw/clarkson, the Web site that accompanies this text. Select “Chapter 7” and
click on “Internet Exercises.” There you will find the following Internet research exercises that you can perform to
learn more about the topics covered in this chapter.
Internet Exercise 7–1: Legal Perspective
Negligence and the Titanic
Internet Exercise 7–2: Management Perspective
The Duty to Warn