Negligence and Strict Liability

Elements of Negligence 1. Duty-The accused wrongdoer

owed a duty of care to the injured person

2. Breach of Duty- the defendant’s conduct breached that duty

3. Causation-defendant’s conduct caused the plaintiff’s harm

4. Damages-the plaintiff suffered actual injuries or losses

McDonald’s Hot coffee suit

The Reasonable Person Standard

Idealized-a person who acts the way the community expects members to act

Certain professions have a higher standard

Minors driving are held to same standards as adults

Causation Cause in fact-harm would not have

occurred with out the act Proximate cause-close connection

between the harm in question and the act that caused it

Example: You wrongfully cross the yellow line and hit a truck. Truck carries dynamite and kills a person two blocks away. Are you negligently responsible for the death?

Damages Must prove actual damages-plaintiff

is entitled to be restored to pre-injury condition

Damages- the money that may be required to accomplish this

Defense to Negligence Suits

negligence-people can recover damages for injuries if they prove each of the elements by a preponderance of evidence

1. Contributory defense: cannot receive damages if you in any way contributed to the harm suffered

2. Comparative negligence-used in most states-dividing the loss according to the degree to which each person is responsible

3. Assumption of Risk defense-person voluntarily encounters a known danger and decides to accept the risk of that danger.

Strict Liability Liability without proof of fault Risk or danger cannot be eliminated

even by reasonable care. Example: demolition of downtown

building-even if demolition is necessary, use of dynamite is knowingly dangerous and any injuries that result are the fault of the company without proof

Toxic Torts, Animals, and Defective Products,

Result of toxic chemicals or hazardous materials

Owners are strictly liable Defective products-Product LiabilityManufacturers have a legal

responsibility for those injured by their products. Drives cost of products up due to research and testing.

Defenses to Strict Liability DON’T have to prove fault DO have to prove causation and

damage

Defendant could try to show no causation or damage occurred.

Defendant can prove that consumer misused a product or failed to follow the safety precautions

Tort Reform Ideally, tort law should…

• 1. compensate harmed persons

• 2. fairly allocate benefits to victims and costs to wrongdoers.

• 3. deter risky and dangerous behavior

Criticism of Current System

$$ awards too costly Lawyers cost a lot and get all the

money Disputes take too long to settle

Tort Reform Binding arbitration-to avoid cost of

trial No fault auto insurance-no need for

civil suit in an accident

Statute of limitations-claim filed within 2/3 years of incident

Cap of damages-especially punitive damages and pain & suffering damages

Frivolous lawsuits --Cases without merit-belief that

many bring cases such as these to court against companies that will knowingly settle out of court

Other tort systems Great Britain-losing party pays the other

sides legal fees Reformers argue this would not be a hardship

on plaintiffs with strong claims because if they won the defendant would pay both sides legal fees

Con: Plaintiffs would be reluctant to sue-end in court order to pay both fees

Con: average lawsuit damages $30,000, very few really costly payouts

Should Tort System be Reformed?

Con-Incentive to produce safe products and services

Careful development and testing Safety training Proper warning for consumers