Clarkson, Business Law 12th ed (2012)

Tortfeasor does not intend the consequences of the act or believes they will occur.  Actor’s conduct merely creates a foreseeable risk of injury.  

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Analysis:  Duty: Defendant owed Plaintiff a duty

of care;  Breach: Defendant breached that duty;  Causation: Defendant’s breach caused the injury;  Damages: Plaintiff suffered legal injury. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about.  A foreseeable risk is one in which the

reasonable person would anticipate and guard against it. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Duty of Landowners to warn invitees, exercise reasonable care.  Landlords owe duty of reasonable care

to tenants and guests for common areas such as stairs and laundry rooms. 

CASE 7.1 McClain v. Octagon Plaza, LLC. (2008). Can a landlord be liable for negligent misrepresentation about the size of a leased space?

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Duty of Landowners (continued).  Duty to Warn Business Invitees of

Foreseeable Risks (knew or should have known).  EXCEPTION: Obvious Risks.

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Duty of Professionals.  Professionals may owe higher duty of

care based on special education, skill or intelligence.  Breach of duty is called professional malpractice.

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No Duty to Rescue.  Law requires individuals to act

reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust.  However, if rescue is attempted, the law requires due care and follow through. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Causation is both:  Causation in Fact, and  Proximate Cause.

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Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway?  Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred. 

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An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability.  CASE 7.2 Palsgraf v. Long Island Railroad Co. (1928). Were the 

plaintiff’s injuries foreseeable? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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To recover, Plaintiff must show legally recognizable injury.  Compensatory Damages are designed to reimburse Plaintiff for actual losses.  Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing. 

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Assumption of Risk.   Superseding Intervening Cause.  Contributory or Comparative Negligence. 

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Plaintiff has knowledge of the risk, and voluntarily engages in the act anyway. Defense can be used by participants, as well as spectators and bystanders. 

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Assumption of the risk can be express or implied. Express by agreement. Implied by plaintiff’s knowledge of risks and subsequent conduct.  CASE 7.3 Pfenning v. Lineman (2010). Is the driver of a beverage cart a “participant” at a golfing event?  

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A unforeseeable, intervening act that breaks the causal link between Defendant’s act and Plaintiff’s injury, relieving Defendant of liability.

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Under common law doctrine of contributory negligence, if Plaintiff in any way caused his injury, he was barred from recovery.  Most states have replaced contributory negligence with the doctrine of comparative negligence. 

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Comparative negligence computes liability of Plaintiff and Defendant and apportions damages.  Pure Comparative Negligence States (California and New York): allows Plaintiff to recover even if his liability is greater than that of Defendant. 

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Modified Comparative Negligence States: percent of damages Plaintiff causes herself are subtracted from the total award.  50 Percent Rule: Plaintiff recovers only if

liability is less than 50%.  51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50%. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Res Ipsa Loquitur.  Facts and circumstances create

presumption of negligence by Defendant.  Burden of proof shifts to Defendant to show he was not negligent.

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Negligence Per Se occurs when Defendant violates a statute designed to protect Plaintiff:  Statute sets out standard of care.  Plaintiff is member of class intended to be

protected by statute.  Statute designed to prevent Plaintiff’s injury. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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“Danger Invites Rescue” Doctrine. Good Samaritan Statutes. Dram Shop Acts.

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Development of Strict Liability.  Theory of strict liability started with

Rylands v. Fletcher (1868 England).  Defendant’s liability for strict liability is without regard to: Fault, Foreseeability, Standard of Care or Causation.  Strict liability based on abnormally dangerous activities is one application. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Ultraharzardous or abnormally dangerous activities:  Involve serious potential harm;  Involve high degree of risk that cannot

be made safe; and  Are not commonly performed in the community or area. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Wild Animals:  Persons who keep wild animals are

strictly liable for injuries caused by the beast.  Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Product Liability: manufacturers can be found liable without regard to fault (see Chapter 22).  Bailments: when goods temporarily transferred to another (see Chapter 49). 

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