Kacy Stein Blaw Chapter 7 Notes Negligence and Strict Liability If you re suing somebody for negligence this is what you have to prove 1 Defendant owed you a duty of care 2 Defendant breached that duty 3 a The breach was the actual cause of your injury and b the breach was what the law calls proximate cause of the injury Duty to act as a reasonable person of ordinary prudence would act under similar or the same circumstances Example if you come to a stop sign you re supposed to stop which is what a person of ordinary prudence would do This is called the reasonable person or reasonable care standard the basic duty that everybody owes to everybody else o How do we know to whom the duty is owed A duty is owed to everybody who would foreseeable be at risk of harm resulting from the breach of duty Stop sign example if you re the driver who fails to stop that is a breach of duty but the duty has only breached of drivers going the other way in the intersection You have not breached the duty of the pedestrian a mile away because they re not foreseeably at risk of harm from your breach So the issue can be once there is a breach to whom is the duty owed Generally the group of people that are at risk of harm is broad but there are some limits o Williams case Gary Williams was in an accident with a driver who was talking on her cell phone Williams sues both the driver and Cingular Wireless This case focuses on the Cingular part Cingular filed a motion to dismiss but Williams appeals to the Indiana court Cingular wins on appeal for many reasons including the fact that it was not foreseeable when Cingular sold the phone that a driver would be using the phone and cause an accident The court also makes the argument that if it were to hold Cingular liable it would have to hold a lot of other manufacturers liable For example cosmetics companies because women apply makeup while driving Breach of duty in order to figure out whether there has been a breach we apply the reasonable person test regarding what a reasonable person would have dine o This is objective in 2 respects The court compares defendant s behavior with the behavior of a reasonable person in the same situation The test focuses on defendant s conduct rather than defendant s state of mind o 6 factors look at to figure out if a defendant breached his duty 1 The reasonable foreseeability of harm 2 The seriousness of the foreseeable harm 3 Was there any social utility to the defendant s conduct In other words even if the defendant was negligent were their actions beneficial to society in any way Let s see you re a fire truck and you re speeding to get to a fire and cause an accident the fire truck was negligent but there was social utility The court might very well decide there was no breach of duty in this situation 4 How difficult it would be for the defendant to avoid the risk of harm The easier it is to avoid the risk of harm the more likely there is to be a breach Example you re driving on an icy road and you re going a bit above the speed limit and cause an accident In this case it may have been difficult to avoid the risk of harm because it was the icy road that probably caused the accident not negligence 5 Physical characteristics of the defendant a Kids as young as 4 have been sued for negligence If you re a kid who is on trial you will be compared to another kid your age second exam If a kid is sued their parents pay b c Exception to this rule If you re an intoxicated person who is the negligent defendant you are not compared to intoxicated people Rather you are compared to how a non intoxicated person would behave 6 Context was it an emergency An example could be a woman who has gone into labor and is speeding to the hospital a Example Accountants can be sued for accounting malpractice Lawyers can be sued for legal malpractice Bottom line a whole range of professionals can be sued on a negligence theory for professional negligence In these cases you would be compared to other professionals in your profession and would be expected to have exercised the knowledge care and skill ordinarily possessed and used by members of your profession Duties owed to people who come onto a property premises liability cases Midterm There are 3 categories of people who go onto land 1 Invitee a person who has been invited onto the land There are two types A business visitor comes onto the land for a purpose connected to the landowner s business An example would be a customer a delivery person A public invitee somebody who is invited onto property that is open to the public like a park Both of these categories are treated the same way the duty is to protect the invitee against the dangerous on premises conditions that the owner knows of or reasonable should discover and that the invitee is unlikely to discover Example poisonous snakes living in a public park The park owner has a duty protect people going into the park against this danger The duty to protect would probably be to remove the snakes 2 Licensee has a license to go onto the property but goes onto property for their own purposes not connected to the landowner s business A typical example is a door to door salesman or people collecting for charity For licensees it is a duty to warn rather than a duty to protect This might be warning a door to door salesman about a viscous dog on the property Not quite as strict as a duty to protect 3 Trespasser no permission or license to be on the property What duty is owed to you Historically the duty to avoid willfully injuring the trespasser was owed only In a situation where kids are the trespassers there s a higher level of duty owed Example putting up a fence to keep kids out of our pool A higher amount of duty owed to regular trespassers this seems wrong but if you re aware that someone is regularly trespassing and you do nothing you will owe a higher duty to them Negligence Per Se a theory or doctrine designed to make it easier for plaintiffs to prove their negligence case The basic idea is that if defendant violates a statute which proves both breach and duty Two conditions have to be met in order for this to apply second exam 1 Plaintiff is in the class of people intended to be protected by the statute 2 Plaintiff suffered the type of harm that the statute was intended to protect against Example There is a federal OCEA and state OCEAs which is designed to promote occupational safety and health …
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