Copyright © 2004 by Prentice-Hall. All rights reserved.© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Chapter 5NegligenceChapter 5

Negligence

4 - 2© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence)

• Unintentional Tort– A doctrine that says a

person is liable for harm that is the foreseeable consequence of his or her actions.

4 - 3© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

• Negligence– Negligence is the omission

to do something which a reasonable man would do, or something which a prudent and reasonable man would not do.

4 - 4© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

To be successful in a negligence lawsuit, the plaintiff must prove that:

1. The defendant owed a duty of care to the plaintiff

2. The defendant breached the duty of care

3. The plaintiff suffered injury4. The defendant’s negligent

act caused the plaintiff’s injury

4 - 5© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

• Duty of Care – the obligation we all each

other not to cause any unreasonable harm or risk of harm.

– The courts apply a reasonable person standard.

– Defendants with a particular expertise or competence are measured against a reasonable professional standard.

4 - 6© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

• Breach of Duty – a failure to exercise care or to act as a reasonable person would act.

4 - 7© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

• Causation – a person who commits a negligent act is not liable unless his or her act was the cause of the plaintiff’s injuries.– Causation in Fact (actual

cause)– Proximate Cause (legal

cause)

4 - 8© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

• Injury to Plaintiff – the plaintiff must suffer

personal injury or damage to his or her property to recover monetary damages for the defendant’s negligence.

4 - 9© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Unintentional Torts (Negligence) (continued)

• Actual Cause – Defendant’s negligent act

must be causation in fact– The actual cause of

negligence.

– Must have cause-and effect relationship

4 - 10© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Proximate Cause – Under the law, a negligent party

is not necessarily liable for all damages set in motion by his or her negligent act.

– The law establishes a point along the damage chain after which the negligent party is no longer legally responsible for the consequences of his or her actions.

– General test is forseeability

4 - 11© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Professional Malpractice– The liability of a professional who

breaches his or her duty of ordinary care.

– Reasonable professional standard• Medical malpractice• Legal malpractice• Accounting malpractice

4 - 12© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Negligent Infliction of Emotional Distress– A tort that permits a person

to recover for emotional distress caused by the defendant’s negligent conduct.

– Some states require physical manifestation

4 - 13© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Negligence Per Se

• Res Ipsa Loquitur

• Good Samaritan Laws

• Dram Shop Acts

• Guest Statutes

• Fireman’s Rule

• Negligence Per Se

• Res Ipsa Loquitur

• Good Samaritan Laws

• Dram Shop Acts

• Guest Statutes

• Fireman’s Rule

• “Danger Invites Rescue” Doctrine

• Social Host Liability

• Liability of Landowners

• Liability of Common Carriers and Innkeepers

• “Danger Invites Rescue” Doctrine

• Social Host Liability

• Liability of Landowners

• Liability of Common Carriers and Innkeepers

4 - 14© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Negligence Per Se– Violation of a statute that

proximately causes an injury

– Plaintiff must be within class intended to be protected

– Statute enacted to prevent the type of injury suffered

4 - 15© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Res Ipsa Loquitur– “The thing speaks for itself”– Defendant had exclusive

control of situation that caused plaintiff’s injury

– Injury would not have ordinarily occurred but for someone’s negligence

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Special Negligence Doctrines (continued)

• Good Samaritan Laws– Protects medical

professionals that stop and render emergency first aid

– Relieves them from liability for ordinary negligence

– No relief for gross negligence or intentional or reckless conduct

– Laypersons not trained in CPR not covered

4 - 17© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Dram Shop Acts– Taverns and bartenders can

be held civilly liable for injuries caused to or by patrons who were served too much alcohol.

4 - 18© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Guest Statutes– Driver voluntarily gives ride

to another– No compensation paid– Driver not held liable for

injuries caused by driver’s ordinary negligence

– Driver still liable for gross negligence

4 - 19© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Fireman’s Rule– Firefighters cannot sue

negligent party for injuries incurred putting out fires

– Applies to police and government workers

– Specially trained to do their jobs

– They have special medical and retirement programs paid for by public

4 - 20© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• “Danger Invites Rescue” Doctrine– Persons who are injured

going to the rescue of another can sue the person who caused the dangerous situation

4 - 21© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Social Host Liability– Social host liable for injuries

caused by guests who are served alcohol at a social function

– injure themselves or another due to intoxication

4 - 22© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Liability of Landowners– Duty of ordinary care owed

to invitees and licensees• Invitees on premises for

mutual benefit of both parties with consent

• Licensee on premises for own benefit, but with consent

– Duty not to willfully or wantonly injure trespassers

• Person has no invitation or right to be on property

4 - 23© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Special Negligence Doctrines (continued)

• Liability of Common Carriers and Innkeepers– Duty of utmost care to

passengers and guests

4 - 24© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Superseding or Superseding or

Intervening Intervening

EventEvent

Assumption of Assumption of

the Riskthe Risk

Contributory Contributory

NegligenceNegligence

Comparative Comparative

NegligenceNegligence

DEFENSES DEFENSES AGAINST AGAINST

NEGLIGENCENEGLIGENCE

4 - 25© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Strict Liability

• Strict liability is liability without fault.

• A participant in a covered activity will be held liable for any injuries caused by the activity even if he or she was not negligent.

4 - 26© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Strict Liability (continued)

This doctrine holds that:1. There are certain

activities that can place the public at risk of injury even if reasonable care is taken; and

2. The public should have some means of compensation if such injury occurs.