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UNCW BLA 361 - TORTS AND STRICT LIABILITY

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 “The life of the law has not been logic; it has been experience.”  Oliver Wendell HolmesCreated by Pamela S. Evers, Assoc. Prof., UNCW, for Educational Purposes © 2001 (w/updates) Tort: wrong (from the French “twist”) arising from a violation of a private duty, but a duty created by law Compare with crime: a wrong arising from a violation of a public duty Compare with breach of contract: injury caused by a violation of an obligation or duty created by agreement of the parties Intentional Tort: defendant deliberately and intentionally acted and harm resulted Negligent Tort: defendant committed an act or omission that, by neglect or oversight, caused injury Intent is the key that separates the two categories Motive (the why) is irrelevant in torts except as evidence of intent motive is a key element only in a criminal case Duty of Due Care (e.g., duty not to harm) Reasonable person standard May be higher for professionals Breach of Duty Causation: two pronged analysis proximate cause  foreseeability Injury Causal relationship between act and injury must exist before liability is imposed Act of third person does not negate liabilityExample 1: Sam hits Joe with car, Joe taken by ambulance to hospital, ambulance crashes. Sam still at fault for his portion of Joe’s injuryExample 2: Doctor implants defective product into patient without warning patient about defect. Manufacturer, as well as doctor, may be liable for injury. Both prongs required to assess liability Proximate cause: “but for” test . . . But for the particular act the harm would not have occurred Foreseeability: Was the consequence of the act reasonably foreseeable? Photo of roller coaster patron –potential injury? Palsgraf & daughters head to Rockaway Beach  RR employee “helped” 2 men board moving train One man dropped package that exploded, injuring 13 people and causing scales on platform to fall, injuring PalsgrafPalsgraf (janitor living far below standard) had trouble walking & sued LIRR Jury awarded Palsgraf $6000, LIRR appealed, and appellate court upheld, but LIRR appealed again 1925: in 4 to 3 opinion, Cardozo reversed because relationship of guard's action to Palsgraf's injury was too indirect & thus not forseeableCardozo even directed that Palsgraf pay $500 in court costs & all of LIRR’s attorney fees! Generally, tort liability imposed only if there is some fault on part of defendant  E.g., driving under intoxication is fault because driver recklessly chose to drink and drive Exception: strict liabilitySUV T-boned by drunk driver Absolute or strict liability may be imposed if society considers activity so dangerous as to endanger the public No fault required, only harm caused by dangerous activityFirestone tire that melted, caused rolloverNow extended to industrial activity, consumer protection, manufacturing defective products Liability may be imposed for tort of employee or agent Liability for tort of child may be imposed on adult parent Royce Ryan suffered brain damage due to accidental shooting by teen Frat party resulted in injury to third party when pledge drove car while drunk Court held fraternity liable because it was similar to tavern in this case Plaintiff (injured party) may be the:  person who was injured a bystander within “zone of recovery” a third party with a special relationship to injured plaintiff Defendant (party who is sued) may be the: person who allegedly caused injury to plaintiff(s) a third party or co-conspirator who also may have injured plaintiff(s) Division of liability when two or more defendants have caused harm to plaintiff, plaintiff may sue defendants for joint and several liability “hunting accident” situation Negligent Torts Intentional Torts Negligence exists whenever the accused acted with less care than a reasonable person might have acted under similar circumstances  “Reasonable person” standard “Reasonable person” standard is highly variable  “Degree of care” required: what would the ordinarily prudent person have done under similar circumstances (may depend on industry) Avg. Economic Cost per Death, Injury, or Crash, 2003 Death $1,120,000 Nonfatal Disabling Injury $45,500 Property Damage Crash (incldg nondisabling injuries) $8,200 Expressed on a per death basis (1 death, 54 disabling injuries, 223 property damage claims), the cost of a fatal motor vehicle crash is about $5,410,000  Calculable costs of MVA crashes are wage and productivity losses, medical expenses, administrative expenses, motor vehicle damage, and uninsured employer costs. To estimate MVA cost per state, multiply number of fatal crashes times cost per crash amount 1004 MVA deaths in NC in 2002, thus cost: $5,432,640,000 Contributory negligence: Under common law, Plaintiff could not recover for injuries caused by a person’s negligence if the plaintiff’s own negligence contributed to the injury Comparative negligence: Most states reject common law rule of contributory negligence and “compare” or weigh the degree of negligence of plaintiff and defendant Plaintiff’s negligence doesn’t bar recovery, but reduces award Res Ipsa Loquitur (thing speaks for itself: Plaintiff has burden to show defendant had duty, failed to exercise reasonable care, that defendant’s act or omission injured plaintiff, and plaintiff suffered injuries Under res ipsa loquitur, fact of injury is evidence of negligenceClamp in abdomen, New Eng. J. of Med. 2003 Violation of statute is negligence per se if the statute was intended to protect from the harm that occurred Example: Mac speeds & hits Jane @ intersection; Mac gets ticket from city (purpose of speed limit is to prevent injury) and is negligent per se in Jane’s lawsuit against himCar Crash Assumption of risk: Plaintiff’s recovery barred or reduced if plaintiff assumed risk or took chances with known danger Practical effect (limits plaintiff’s recovery) similar for either assumption of risk or contributory negligenceSnowboard AccidentBaby scarred by surgeon’s scalpel during C-section birth(birthlove.com)Demonstrative evidence of car crash Liability imposed for negligent performance by a professional Medical malpractice called “preventable adverse events;” see


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UNCW BLA 361 - TORTS AND STRICT LIABILITY

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