LSB 3213 1st Edition Lecture 25 Today Finish chapter 6 torts Discuss chapter 7 products liability Tort Law Standard of Judgment Four levels of potential liability 1 Intentional purpose 2 Reckless conscious disregard of a known risk 3 Negligence careless not intentional 4 Strict Liability cause effect not mental state Negligence Standard Defendant did not intend to cause harm Punitive damages typically not available For negligence torts carelessness must prove 4 elements 1 Duty 2 Breach 3 Cause 4 Harm Defenses to Negligence Failure to prove one of the four elements o Example The example of the woman driving the Ford Explorer in the middle of nowhere when her tire blew out and while she was stranded was assaulted by a stranger She could not prove harm as the tire did not cause the person to attack her Assumption of risk Contributory negligence Comparative negligence Assumption of Risk At a Seattle Mariners game a family was sitting along the right field line where many foul balls go by sitting there they assume the risk of getting hit by a baseball If during warm ups before These notes represent a detailed interpretation of the professor s lecture GradeBuddy is best used as a supplement to your own notes not as a substitute the game the pitcher throws the ball by the first line and then hits a woman sitting along the right field line Was this an assumption of risk The court sided with the assumption of risk with errant baseballs If there is a hole in the protective net and a ball flies through the hole or if the net is too short the seats are too close etc then that is negligence as these are not known risks Contributory Negligence Historical rule If the plaintiff was even 1 negligent or contributed in any way to the harm and defendant was 99 at fault then the plaintiff receives no damages Today only 5 states follow this rule Comparative Negligence Pure comparative fault 5 states o The amount of recovery damages equals the percentage of the defendant s fault 51 comparative fault 21 states o No recovery if the plaintiff is 51 or more at fault 50 comparative fault 12 states o No recovery if the plaintiff is 50 or more at fault Drunk Driver Example A drunk driver hits and kills a family illegally crossing the road on a red light the driver had a green light who is responsible The court decided that the driver was 80 responsible and the family was 20 responsible of 1 million damages o Contributory negligence state the family gets no recovery or damages as they contributed to the harm o Pure comparative state The family gets 800 000 as the driver was 80 responsible or 1 million 200 000 20 of 1 million o 50 or 51 comparative fault state The family receives 800 000 as they were less than 50 or 51 responsible still only receive damages equal to the amount that the driver was responsible OSU Construction Example An OSU student is riding his bike by the construction site at night and a shovel is left out The biker hits the shovel falls off the bike and injures himself but the student was riding the bike with a blindfold on as part of a dare Who is responsible for the damages Court Construction company 40 responsible and the student is 60 responsible 1 million damages o Contributory negligence state the student gets no recovery of damages as he was partly at fault o Pure comparative negligence state the student gets 400 000 40 of the 1 million in damages o 50 or 51 comparative negligence state The student gets no recovery as he was 60 responsible more than 50 or 51 McDonald s Hot Coffee Again The court decided that the victim was 20 at fault and McDonald s was 80 at fault Compensatory damages o 200 000 reduced to 160 000 20 reduction 2 7m in punitive damages to punish bad behavior Punitive damages reduced due to high 17 1 ratio not due to comparative negligence Strict Liability liability without regard to fault cause effect not mental state Difference between negligence and strict liability o Negligence duty breach cause harm o Strict liability cause harm Being extremely careful is no defense Background o Social policy Who can better best afford to pay for the injuries Most often large companies can better afford to pay for these injuries and are considered part of operating expenses o McDonald s hot coffee case Often recognized as strict liability problem waiting to happen reckless punitive damages and negligence reduced compensatory damages 3 categories of strict liability o Abnormally dangerous ultra hazardous activity o Wild and some domesticated animals o Product liability for defective products Category 1 Abnormally Dangerous Activities High risk of serious harm that cannot be protected against even with reasonable care Dynamite blasting construction mining Storing explosives Crop dusting or stunt flying Debate truck transporting gasoline Sky diving o Sky diving is usually handled under strict negligence as people sign a contract for risk not necessarily a business activity o A truck transporting gasoline is usually not considered dangerous as it is not really a dangerous activity Category 2 Animals Wild animals lions tigers bears etc o If the animal attacks someone it is your fault Domestic animals dog cat cows sheep chicken etc o Only responsible IF the owner knew or should have known the domestic animal was dangerous or had propensity to harm others o One bite rule once the animal bites or attacks once it is considered a wild animal before the bite considered negligence after the bite considered strict liability o Pet pit bull or rattlesnake Really depends on the animal and situation Category 3 Product Liability 3 types using knife example Manufacturing defects Departure from the intended design or manufactured incorrectly o Example if the blade was loose in the handle in knife of the 1 000 Design defects All items you produce are defective because of the design you have to prove that there could be a better design An alternative design would have made the product safe econ analysis o Example if a switch blade was made where the button to shut the blade was right where the blade came down Inadequate warnings Warn of non obvious risks o Looks like a kitchen knife but it has a button that releases a dagger at the other end not warned about Schedule Thursday finish Chapter 7 strict liability Dead Week o o o o o No class on Tuesday April 28 Thursday April 30 last class Optional extra credit assignment due in class Discuss criminal law EC material on Exam 3 Clicker review for Exam 3