Business Law The Ethical Global and E Commerce Environment
16th Edition by Mallor ISBN 0077733711 9780077733711
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CHAPTER 07 NEGLIGENCE AND STRICT LIABILITY
I. OBJECTIVES:
This chapter is designed to acquaint students with the other two bases of tort liability: negligence and strict liability. After reading the chapter and attending class, a student should:
A. Be able to identify the basic elements of a negligence action.
B. Be able to apply negligence principles to various fact patterns, in order to ascertain whether they justify the imposition of liability.
C. Understand how strict liability differs from negligence. See also the Learning Objectives that appear near the beginning of the chapter.
II. ANSWERS TO INTRODUCTORY PROBLEM:
A. In Cabral v. Ralphs Grocery Co., 248 P.3d 1170 (Cal. Sup. Ct. 2011), the Supreme Court of California held that the California Court of Appeal erred in holding that neither Horn nor his employer (Ralphs) owed a duty of reasonable care to the decedent. The key consideration in determining whether a duty of reasonable care exists is one of foreseeability. See the further discussion in the text.
B. Breach of duty and causation of injury would also have to be proven. In addition, see the discussion in II.C (immediately below).
C. Assuming Horn was negligent, he would be liable. But Ralphs could also be liable on
either (or both) of two bases. First, Ralphs could be vicariously liable on respondeat superior grounds. Under that doctrine, an employer (here, Ralphs) is liable for a tort committed by its employee (here, Horn) if the tort occurred within the scope of employment. Horn was clearly acting within the scope of employment at the time of his negligence (if any). Ralphs also could face liability for its own negligence, if the plaintiff could establish that Ralphs failed to use reasonable care (such as by failing to have adequate policies making it clear that its drivers were not to stop alongside the roadway). If both Horn and Ralphs could be held liable, the plaintiff could sue either or both.
D. Because of the comparative negligence or comparative fault approach adopted in nearly all states, the decedent’s own negligence would not necessarily bar the plaintiff from recovery. Here, the jury had concluded that the decedent’s own negligence accounted for 90 percent of the causation and that the defendants’ negligence supplied the other 10 percent. Controlling California law set up a pure comparative negligence scheme of the sort discussed later in the chapter. This that Cabral could still win the case if she proved all elements of her claim, but that the damages would be reduced by 90 percent. Under a mixed comparative negligence scheme of the sort described later in the chapter (and applicable in many states), the fact that the decedent’s degree of responsibility exceeded that of the defendants would have barred the plaintiff from winning the case.
E. Yes, presumably, given the foreseeability of harm to others if the company were to put an unsafe truck driver on the road. A strong argument could be made that an ethical obligation along those lines would seem to be present as well. (See Chapter 4’s discussion of ethical theories.)
III. SUGGESTIONS FOR LECTURE PREPARATION: A. Negligence
1. Outline the elements of a negligence claim in order to provide a basic roadmap of what the plaintiff must prove. Note that the defendant may attempt to raise defenses (the details of which will be discussed later).
2. Duty and Breach of Duty:
a. With regard to the reasonable care/reasonable person standard:
i. Reasonable care--the duty to act as the hypothetical reasonable person would--is the usual duty for purposes of negligence law. This assumes, however, that a duty exists in the first place. Note the role of foreseeability in determining whether a duty exists. Stress the modern tendency of courts to take a broad view of the group of persons who may be foreseeable “victims” of defendants’ conduct. This means that a duty will be held to have existed in the vast majority of negligence cases. The focus must then turn to whether the duty was breached.
ii. One way to view the breach of duty element is that it contemplates the defendant's having failed to live up to the behavioral standard set by the reasonable person. In this connection, observe that negligence is behavior, not some mental state.
iii. So how would the reasonable person behave? This depends on all of the relevant facts and circumstances and on the various factors discussed in the text (foreseeability, magnitude, etc.). Stress that discretionary, factor-based balancing occurs here and that the weight of each factor will vary with the facts. Ordinarily, however, foreseeability of harm is the most important of the bunch. This means that foreseeability is important not only to the determination of whether a duty was owed, but also to the determination of whether the duty was breached. Examples: Problems #1, #4 (formerly a text case), #5 (formerly a text case), #8, and #11; Dick’s Sporting Goods (a text case discussed later); Kroger Co. v. Plonski (formerly a text case; discussed below; now Problem #7); Currie (a text case discussed later); and Shafer (a text case discussed below).
Shafer v. TNT Well Service, Inc. (p. 228): The Supreme Court of Wyoming holds that the district court erred in granting summary judgment in favor of the defendant (TNT) in a case in which the plaintiffs sustained personal injuries and property damage as a result of a motor vehicle accident caused by the negligence of Clyde, whose employment with TNT supposedly had been terminated just prior to the accident. Clyde was driving a TNT vehicle at the time of the accident. A post-accident blood test revealed the presence of controlled substances in his blood. In reversing and remanding, the court held that the plaintiffs could proceed with their negligent supervision and negligent entrustment theories.
Points for Discussion: Ask the students what the plaintiffs’ claims were (initially respondeat superior, negligent supervision, and negligent entrustment, but only the latter two by the time of the appeal because the plaintiffs gave up on the respondeat superior claim). Ask why the district court concluded that respondeat superior didn’t apply. (If his employment had been terminated prior to the accident, he couldn’t have been acting in the scope of employment when the accident occurred.) Note, however, that the Supreme Court said there were genuine issues of material fact as to whether Clyde’s employment had been terminated prior to the accident. Perhaps, then, the plaintiffs shouldn’t have abandoned their respondeat superior claim? Importantly, however, the court indicates that the questions as to whether Clyde’s employment had been
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terminated also relate to the direct liability claim for negligent supervision. Ask how a claim for negligent supervision of an employee (or negligent hiring or negligent retention) differs from respondeat superior. (Respondeat superior can cause the employer to be liable for the employee’s tort, whereas a negligent hiring, negligent retention, or negligent supervision is the employer’s own tort.) Explain the difference between direct liability and vicarious (or imputed) liability. Might there have been a failure to use reasonable care on TNT’s part in supervising Clyde? The court indicates that there may have been, and again points to the relevance of disputed factual questions that need to be resolved on remand. Ask about the role of foreseeability in a determination of whether TNT owed a duty of reasonable care in supervising Clyde and whether TNT breached that duty. (Note the drug-induced state Clyde was in at the time of the accident, his prior DUIs, and the failure of TNT to give Clyde a pre-employment drug test despite some witnesses’ statements that drug tests supposedly were given regularly to newly hired employees.) Ask about the role of foreseeability in regard to the duty and breach questions associated with the negligent entrustment claim. (Some of the same things noted in the earlier parenthetical are relevant here as well.) Note the essence of a negligent entrustment claim, and stress that it doesn’t require an employment relationship between the entrusting party and the entrusted party (even though such a relationship existed here as of the time TNT provided a company vehicle to Clyde). Note, too, that the fact of TNT’s ownership of the vehicle doesn’t by itself make TNT liable (contrary to what many students might believe). Finally, this case provides a good basis for discussing the summary judgment standard and the effect of an appellate court’s reversal of a grant of summary judgment.
b. Note the special duties (discussed at p. 235) for professionals, common carriers, and, in appropriate instances, innkeepers. The mention of landlords’ possible liability stemming from foreseeable criminal acts of third parties relates to the immediately following material on duties of owners and possessors of property, as well as to the causation discussion that appears later in the chapter.
c. Note the traditional duties owed by owners and possessors of real property to persons on that property. In emphasizing that these rules depend heavily upon the status of the person who is on the property, distinguish among the traditional classifications of invitee, licensee, and trespasser. Note the trend among some courts to merge the invitee and licensee classifications.
d. Note that cases dealing with duties owed to persons on property are often referred to as “premises liability” cases. Traditionally, premises liability cases focused on physical conditions at the relevant premises conditions that could harm persons who are on the premises. Examples: Problem #3 (the Hresil case one that students usually like); Dick’s Sporting Goods (a text case discussed later). In recent years, premises liability has been extended so that negligence cases of that nature may be based, in appropriate instances, on the behavior of other persons on the premises. Sometimes an owner or possessor of property may face liability to invitees who were injured by the foreseeable criminal acts of third parties who were on the premises. See, for instance, Currie, which is discussed below; Kroger v. Plonski (now Problem #7 but formerly a text case; see later discussion); and Lord v. D&J Enterprises (a text case discussed later). See also Problem #4 and the Ethics in Action box at. p. 234
Currie v. Chevron U.S.A., Inc. (p. 231): A gas station attendant allowed gas to flow to the pump, though a physical altercation was taking place next to it. The assailant pumped gas onto the victim and lit her on fire. The jury found the attendant had
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
breached the duty of care by allowing the gas to flow to the pump when she might have anticipated that gas would be used as a weapon. The 11th Circuit upheld the denial of the defendants' motion for judgment as a matter of law, as the evidence offered room for a reasonable difference of opinion on what the attendant should have expected.
Points for Discussion: The underlying killing in this case was intentional rather than merely negligent. Should Shukla really be held to account when Muhammad deliberately committed a heinous act? Should Chevron? Hitting the button after hearing the beep likely borders on a Pavlovian response, and under normal circumstances, we would understand if Shukla hadn't given much thought to it. (But were these normal circumstances?) Consider as well that Shukla probably didn't violate any part of her training. Her training regarding "the button" probably addressed payment issues rather than these out-of-the-ordinary safety issues. Did Chevron have a duty (as part of a duty of reasonable care) to train employees about how to handle situations of the sort present in this case? (Probably not, prior to this strange incident.) What about going forward, after this case? (Maybe so, given that Chevron is on notice that this kind of thing can happen. And as a practical matter, Chevron probably would want to get the word out to employees about what happened here even though it was an unusual set of facts, because Chevron wouldn’t want to be subjected to liability again if a comparable out-of-the-ordinary situation again arose.)
Note that Chevron’s liability in this case is really on respondeat superior grounds (because Shukla’s negligence occurred within the scope of her employment), not because of any ruling that Chevron itself was negligent. Finally, note that Muhammad of course would be liable (for battery). But she’s almost certainly judgment-proof. That probable fact surely helps to explain why Currie seeks to have other possible defendants held liable.
Dick’s Sporting Goods, Inc. v. Webb (p. 235): The Supreme Court of Kentucky holds (as had the Kentucky Court of Appeals) that the trial court erred in granting summary judgment in favor of the defendant (Dick’s) in Webb’s case, which pertained to the injuries she suffered when, on a rainy day, she slipped on the wet tile floor of the defendant’s floor shortly after entering the premises. The Supreme Court concludes that Webb’s case should be resolved by a jury. Points for Discussion: Ask what duty the store owner normally has to customers with regard to physical conditions on the premises. (The duty to use reasonable care to keep the premises reasonably safe.) Why did the trial court think Dick’s was entitled to summary judgment? (According to that court, the wet floor was an open-andobvious condition, and that an open-and-obvious condition effectively makes the usual duty of reasonable care inapplicable or at least not violated under the circumstances.) Ask what the intermediate appellate court concluded regarding the open-and-obvious condition issue. (That the duty of reasonable care applies even if the condition was open and obvious.) Even though the Supreme Court concluded that the intermediate appellate court was right in setting aside the trial’s court’s grant of summary judgment to the defendant, how was the Supreme Court’s rationale different from that of the intermediate appellate court? (The Supreme Court didn’t think that the wet tile on which Webb slipped was an open-and-obvious condition anyway, so there was no reason to rule on the effect of an open and obvious condition and no reason to think that the usual duty of reasonable care didn’t at least potentially apply to the case.) Note the role of foreseeability of harm in cases such as this. Note that given the posture of the case, the Supreme Court didn’t hold that Webb ultimately will win the case. Rather, it ruled that jury questions were present in
regard to disputed maters of fact and whether Dick’s breached its duty of reasonable care. Finally, note that this case is a fairly traditional premises liability case in which the plaintiff claims that the defendant failed to take adequate measures to eliminate a supposedly dangerous physical condition on the premises. As cases such as Lord (a text case) to be discussed shortly) and Kroger v. Plonski (formerly a text case; discussed below) indicate, the duty of reasonable care owed by owners or possessors of property can sometimes extend to taking reasonable steps to lessen the danger that a person legitimately on the premises could be harmed by a third-party wrongdoer).
Kroger v. Plonski (formerly a text case; now Problem #7): The Supreme Court of Indiana holds that the trial court correctly denied Kroger’s motion for summary judgment in a case in which the plaintiff (Plonski) claims that Kroger negligently failed to provide adequate security in the parking lot area outside a Kroger store. Points for Discussion: Ask a student to summarize the basic facts. What is Kroger’s argument for why it should receive summary judgment? (No duty; alternatively, even if duty, no breach). Why does the court conclude that Kroger owed Plonski a duty? (Foreseeability of harm to invitee if adequate security measures not taken.) Note that criminal acts of third parties what we have here often used to be considered unforeseeable as a matter of law, but that’s not necessarily true now. Such acts may be foreseeable. Ask the students what evidence there was regarding foreseeability here. Who should decide whether there was a breach of the duty of reasonable care?
(A jury, according to the court.) What evidence in this case might justify a jury in concluding that there was a failure to use reasonable care on Kroger’s part? If Kroger is ultimately held liable here, wouldn’t it amount to being held liable for a third-party criminal’s act? (No. Kroger would be held liable for its own negligence. The attacker would be liable for battery, though odds are he’s judgment-proof.)
Lord v. D&J Enterprises, Inc. (p. 237): The Supreme Court of South Carolina holds that the trial court erred in granting summary judgment in favor of defendant D&J in a case based on plaintiff Lord’s having been shot by a third-party wrongdoer while Lord was at D&J’s Cash on the Spot business premises. The court holds that jury questions were present with regard to whether D&J breached its duty of reasonable care.
Points for Discussion: Ask the basis for the trial court’s decision to grant summary judgment to the defendant. (The trial court concluded that D&J didn’t owe a duty to the plaintiff.) Why, according to the Supreme Court, was there a duty of reasonable care on the part of D&J and why that duty could involve an obligation to take greater security measures to guard against such as that of the third-party gunman?
(Foreseeability, given the armed robberies that had been occurring in the area and the knowledge of D&J’s president and the store’s manager that the armed robberies had been taking place.) What’s necessary for a third-party wrongdoer’s acts to be foreseeable? Is it only prior criminal acts on the premises, or criminal acts occurring in the area? (The court says, of course, the former would be relevant if they occurred, but that the latter can be enough for foreseeability kick in, as here, and help to shape the duty of reasonable care.) So, on remand, the case will focus on whether D&J breached its duty of reasonable care. Didn’t D&J take some security measures already? (Yes, bars on windows and bullet-proof glass on tellers’ windows.) But do those steps protect customers? Should D&J’s duty of reasonable care include, under the circumstances, having a security guard on the premises? As the court’s analysis indicates, that question will become important on remand.
e. Negligence per se should be presented as an alternative way of establishing a duty
and a breach thereof. Certainly its content is different from the reasonable person standard. It seems to have had its roots in the courts' desire to pump some content into the open-ended reasonable person standard. The Restatement (Second) says, in §286, that in addition to statutes, ordinances and administrative regulations may give rise to negligence per se claims. Example: Problem #2.
Kaltman v. All American Pest Control, Inc. (p. 240): The Supreme Court of Virginia concludes that the trial court erroneously sustained the defendants’ demurrer to the Kaltmans’ negligence per se claim.
Points for Discussion: Students should have little difficulty recognizing the presence of the two elements of negligence per se in this case. After asking a student to summarize the basic facts, ask why negligence per se applies to this case involving a violation of a safety regulation that effectively outlawed residential use of the pesticide that the defendants used at their customers’ home. Were the plaintiffs within the class of persons the statue was designed to protect? Yes. Was the harm they experienced of the sort the statute was designed to prevent? Yes. Also note why the court rejected the defendants’ argument that the contract they had with the plaintiffs (their customers) exclusively established the duties the defendants owed the plaintiffs.
3. Causation of Injury
a. The actual injury requirement means that plaintiffs cannot recover nominal damages in a negligence case.
b. Distinguish among the major types of harm that may be present in negligence cases: personal injury (also called physical injury or bodily injury); property damage; and economic loss. Note that compensatory damages are available for such harms. Note, also, that with regard to personal injury, the compensatory damages may include socalled “special” damages for more readily quantifiable harms (medical expenses, lost wages, and the like) and so-called “general” damages for more intangible harms such as pain and suffering. Be certain that students understand the difference between compensatory damages and punitive damages. They should also know, at least in a general sense, when punitive damages tend to be awarded and why they typically are not available in a negligence case (absent proof of something going beyond negligence).
c. Comment briefly on how negligence law deals with claimed emotional harms. Note that when they are logically connected with a physical injury (or at least with some physical impact on or contact with the plaintiff’s body), courts routinely award damages for emotional harms. Although many courts no longer insist on a physical injury or a physical impact as a perquisite to recovery of damages for emotional harm (i.e., many courts now allow recovery for emotional harm standing alone), a significant number of courts still follow the older approach. You may wish to discuss the Hagan case, a negligent infliction of emotional distress case that appears in Chapter 1’s section on case law reasoning.
Atlantic Coast Airlines v. Cook (p. 243): The Supreme Court of Indiana rejects a claim for negligent infliction of emotional distress stemming from the airline’s having allowed an apparently threatening passenger to remain on a flight for too long, frightening the other passengers.
Points for Discussion: The modified impact rule and the proximity rule play a necessary role as limiting principles in emotional distress cases If negligent infliction of emotional distress claims were not limited in some way, the range of potential liabilities would reach far too wide. As limiting principles, though, are the modified impact rule and the proximity rule much better than arbitrary (for instance,
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a requirement that the victim either cry or suffer some sort of stomach trouble)? The plaintiffs' strained attempts to satisfy the impact rule by reference to cigarette smoke and floor vibrations call attention to the problem. Which is worse the apparent sophistry of the plaintiffs' argument or the law's requirement that plaintiffs bend over backwards to meet its almost accidental-seeming requirements? In the time of social networking and Googlable journals, the impact and proximity rules feel especially arbitrary. If we accept that some principle is necessary to limit liability, is it possible to come up with a scheme more “principled” than the one in existence? More broadly, is the definition of the claim even the proper place to encode the limit? Could a damages cap work? How about a requirement that the emotional distress claim piggyback on a more concrete claim? How about a requirement that there be a significant number of plaintiffs suing for the same distress?
d. The “third-party” emotional distress case is a special type of negligent infliction of emotional distress case. (This type of case is discussed briefly in the Cook case.) Such cases generally involve claims for emotional distress suffered by the plaintiff when the defendant's negligence causes physical harm to someone else (usually someone closely related to the plaintiff). Traditionally, the "impact rule" prevented recovery in such cases. Now, however, many courts say that plaintiffs who are in the "zone of danger" created by the defendant's negligence can recover for emotional injuries caused by the threat of harm to them even if there was no physical impact experienced by the plaintiff (e.g., the defendant’s negligently driven car strikes the plaintiff’s companion and narrowly misses the plaintiff). Other courts have abandoned the zone of danger rule. These courts, however, limit recovery in other ways, such as by requiring (a) a close personal relationship between the plaintiff and the person harmed by the defendant's negligence, and (b) the plaintiff's direct observation of the infliction of this harm on the other person. A few courts will push liability even further, by allowing recovery simply for the plaintiff's observing a closely related victim in an injured state after the accident has occurred.
4. The Causation Link
a. Regarding actual cause:
i. Open your discussion with an example such as the one in the text.
ii. Discuss the basic "but for" test. This test can be stated more rigorously by asking: "If not for [but for] the breach, would the injury have happened anyway?" If the answer is yes, then there is no but-for causation. If the answer is no, then but-for causation exists.
iii. Explain the "substantial factor" test that courts employ when two or more actors may have caused the plaintiff's harm. Either “but-for” causation or causation in the “substantial factor” sense will satisfy the actual cause element.
b. Regarding proximate cause:
i. Stress that we are assuming the existence of actual causation here, and that proximate cause is concerned with the question of how far along the causal chain the defendant's liability extends. Although it is sometimes more difficult to establish than actual cause, proximate cause will usually exist if actual cause exists. Sometimes, however, there will be no proximate cause even though there was actual cause meaning that the causation element of a negligence claim would not be satisfied.
ii. Note the consequences of choosing one test or another and the social policy choices involved. For example, it often is claimed that in the 19th century, courts interpreted proximate cause narrowly to protect infant manufacturing industries and railroads from liability. Note, however, that when proximate cause tests are applied broadly as they often tend to be today proximate cause is more likely to
be held to have existed.
iii. You may want to discuss some of the various proximate cause tests employed by courts. You may also find it helpful to construct a hypothetical fact situation and ask students to solve it using the tests you have discussed. Alternatively, you may wish to hand out some contrasting proximate cause cases for class discussion. Three classics are: In Re An Arbitration Between Polemis and Furness, Withy & Co., Ltd., 3 K.B. 560 (Eng. 1921); Overseas Tankship Ltd. v. Morts Dock & Eng'g Co., Ltd., [1961] A.C. 338 (Privy Council) [noted in 36 N.Y.U. L. REV. 1043]; Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. Ct. App. 1928). (Palsgraf’s “scope of the foreseeable risk” test is often referred to as a proximate cause test. In effect, however, it is a test for whether a duty exists.) On the other hand, you may want to tread fairly lightly on this subject, and simply adopt one test or another as a convention for the class. If you elect this approach, the natural and probable consequences test may be a good one to choose. Note the possible effect of a narrow construction of what is natural and probable (maybe a lack of proximate cause). Contrast that effect with the effect of a broad construction of what is natural and probable (proximate cause likely). The broad construction is often employed today.
iv. Problem #9 (formerly a text case) illustrates a further approach to the proximate cause question: one in which the existence of a duty and the breach thereof are assumed, and the court then asks whether, given the nature of the breach, the plaintiff’s injury was foreseeable.
Black v. William Insulation Co. (p. 247): The Supreme Court of Wyoming rejects a wrongful death claim against a subcontractor based on an automobile accident caused by the subcontractor's off-duty employee. The plaintiff alleged that the employee would not have fallen asleep at the wheel if the subcontractor had taken measures to prevent exhaustion. The court held that the employee was exhausted on account of his decisions to commute to work and to work a second job, not on account of the 10-hour workday mandated by the subcontractor. Points for Discussion: The court consistently portrays Ibarra-Viernes’ work schedule as a voluntary matter of personal choice. Do your students agree? Could Ibarra-Viernes have been completely desperate and strapped for cash? Most people would not “voluntarily” take on a schedule as backbreaking as Ibarra-Viernes’ schedule. And if the second job was not “voluntary,” what about Ibarra-Viernes’ decision to commute rather than to spend the $30 “offset” on a hotel near the work site? The second job, after all, would have been near where he lived. Whatever the proper outcome of the case, should the court have considered the role of Ibarra-Viernes’ wage (a figure that no doubt exercised a far greater influence on his driving activities than the $30 lodging “offset”)? But if Ibarra-Viernes shouldn’t absorb all the blame for this tragedy (he’s almost certainly judgment-proof, by the way), then who will pay the victim? Plenty of parties profit by the conditions that keep Ibarra-Viernes from sleeping: the subcontractor; Exxon, certainly, which benefits from the subcontractor’s low bid; arguably, the whole society; arguably, people like the decedent. But is there any means built into tort law for collection from those parties? Ask why the court came down so hard on Ibarra-Viernes. Was the point simply to deflect blame from the subcontractor toward a party who was unlikely to pay in any case? Did the court see this as a “that’s life” case where there just isn’t anyone to blame?
v. The Stahlecker case (p. 250; commented on below) addressed proximate cause issues in addition to the intervening cause issues that serve as the main reason
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why it was chosen as a text case.
c. In discussing later acts, forces, or events that help bring about or worsen the plaintiff’s injuries, make certain to distinguish between acts, forces, or events that are foreseeable and those that are unforeseeable. Only the latter are intervening causes, which limit the extent of the defendant’s liability by restricting it to whatever harm had occurred up to the time of the intervening cause. In other words, the harm directly traceable to the intervening cause will not be the defendant’s responsibility. If, however, the later, act, force or event was foreseeable, the defendant’s liability includes responsibility for the further or worsened injuries stemming form the foreseeable act, force, or event. Foreseeability, which plays a key role concerning duty and breach issues, thus holds further significance with regard to causation issues. Note that a later act, force, or event may sometimes involve wrongful behavior by another party. That wrongful behavior may be foreseeable or unforeseeable, depending upon all of the relevant facts and circumstances. Using examples similar to those in the text, note that criminal acts of third parties are no longer considered to be unforeseeable as a matter of law and therefore are not automatically classified as intervening causes. Criminal acts of third parties may sometimes be foreseeable as is illustrated by recent years’ expansion of premises liability principles (e.g., the XYZ scenario addressed in the text).
d. Stahlecker v. Ford Motor Co. (p. 250): The Supreme Court of Nebraska holds that Cook's abduction, sexual assault, and murder of the plaintiffs' decedent was an intervening cause preventing Ford and Firestone from possible liability for alleged failures to use reasonable care in connection with the marketing and sale of an allegedly defective tire whose malfunction left the decedent stranded in a remote location. The demurrers of Ford and Firestone were held to have been appropriately sustained.
Points for Discussion: Note the court's useful discussion of foreseeability as it relates to duty and to causation. Note, also, the court's observation that the actual and proximate cause issues in this case can't be divorced from the intervening cause analysis. (What's a "but for" cause for purposes of the actual cause analysis? What's a natural and probable consequence for purposes of the proximate cause analysis? What's an intervening cause? All of these questions require consideration of foreseeability.) Ask the students what's necessary for a later act, force, or event to be an intervening cause. (It must be unforeseeable.) Were Cook's actions unforeseeable? The court thinks so. If there wasn't an intervening cause in the Shelton case discussed by the court, how could there be an intervening cause here?
In Shelton, there appeared to be a decent argument for foreseeability even though the court in that case didn't buy it. Here, the foreseeability argument seems a good bit weaker than in Shelton (and the argument failed in Shelton). Ask the students how the court distinguishes this case from the psychiatric ward case and the invitee case it mentions. Ask about the plaintiffs' attempt to argue that statistics about crime should suffice to establish foreseeability on the part of Ford and Firestone. The court says that statistics alone won't get the job done in the foreseeability analysis. More specifics would be necessary. Finally, note that Cook almost certainly is judgmentproof. (He is unlikely to accumulate significant assets while in prison.) The plaintiffs have a meritorious claim against Cook, but what good will it do them if they can't collect any of the damages that might be awarded?
e. If you have time, discuss the special rules/exceptions listed in the text’s section on intervening cause. Stress that these rules defeat the proximate cause and intervening force rules discussed earlier.
f. A very different special rule is supplied by a federal law that may protect appropriate
defendants against liability in certain cases dealing with information supplied in the Internet context by an information content provider. That rule is discussed in the Cyberlaw in Action box on p. 253
5. Discuss the doctrine of res ipsa loquitur, demonstrating how it can aid some plaintiffs in proving a negligence case. Note that res ipsa is based on two considerations: the defendant's superior knowledge (derived from his "exclusive control"); and the logical inference that someone was probably negligent and that the defendant is probably the relevant “someone.” Res ipsa is sometimes used today in plane crash cases in which plaintiffs are often at a significant disadvantage in proving the crash’s cause. You may wish to note some commentators’ suggestion that the third element of res ipsa (proof that the plaintiff was in no way responsible for his own injury) should be dropped if the jurisdiction has adopted a comparative fault system.
6. Defenses to Negligence Claims
a. Contributory negligence. Under this traditional defense, the plaintiff's failure to exercise reasonable care for his own safety would prevent him from winning the case if his failure to use reasonable care was a substantial factor in producing his injury. Just as there must have been a causal relationship between the defendant's breach of duty and the plaintiff's injury before the defendant will be liable for those injuries, so too must there have been a causal relationship between a plaintiff's failure to exercise reasonable care for his own safety and his injury in order for that failure to have the effect of barring his recovery. Stress that under the traditional contributory negligence rule, a plaintiff’s failure to use reasonable care for his own safety could be a substantial causation factor even if it was significantly less of a causation factor than the defendant’s breach of duty. Accordingly, the rule often had the harsh effect of barring the plaintiff from recovery even when the defendant was much more at fault than the plaintiff was. The harshness of the contributory negligence rule has caused nearly all states to replace with it with a comparative negligence or comparative fault scheme. Even so, it is important to understand contributory negligence because it provides the underpinnings for what happens in “mixed” comparative negligence states when the plaintiff’s degree of fault exceeds that of the defendant.
b. Comparative negligence. Open with a reminder of the potential harshness of the traditional contributory negligence rule, under which a defendant could have a complete defense even when the defendant was considerably more at fault than the contributorily negligent plaintiff. Comparative negligence rules have received the widespread adoption noted in the text because of their ability to lessen the harshness of contributory negligence. Explain the operation of comparative negligence principles, making certain to distinguish between the "pure" and "mixed" forms. Note that under the mixed form, the defendant has a complete defense as with traditional contributory negligence if the plaintiff’s degree of responsibility for her injuries exceeds that of the defendant.
c. Assumption of risk. Traditionally, plaintiffs who voluntarily expose themselves to a known danger created by the defendant's negligence assumed the risk of injury and were denied any recovery. This is assumption of risk of the implied variety. Note that knowledge and voluntariness typically are inferred from the facts. Sometimes the inference is a matter of law; the classic example is getting hit by a foul ball at a baseball game. There is also an express variety of assumption of risk. For this variety to exist, there must normally be an enforceable exculpatory clause in a contract. Such clauses are discussed in Chapter 15. You may want to assign that portion of Chapter 15.
d. The emergence of comparative fault. Often the terms comparative negligence and
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comparative fault are used interchangeably. Technically, however, the former covers only negligence and the latter incorporates all kinds of fault, including assumption of risk (except for express assumption of risk). Many states have comparative fault statutes.
Berberich v. Jack (formerly a text case but now Problem #6): The Supreme Court of South Carolina regards the state’s comparative negligence statute as setting up a comparative fault rule, and holds that a plaintiff’s negligent failure to use reasonable care for his own safety is relevant not only in cases in which the defendant is alleged to have been negligent but also in cases in which the defendant is alleged to have acted recklessly.
Points for Discussion: Ask a student to summarize the basic facts here. Ask how Berberich (the plaintiff) seeks to have Jack’s actions characterized here. (As reckless actions rather than merely negligent actions.) Why? (Presumably because he thought her actions went beyond negligence, but almost certainly also because he hoped the court would conclude that any negligence on his own part shouldn’t be compared against the defendant’s fault if that fault amounted to reckless rather than negligence.) How does the court resolve the issue, and why? (By treating the comparative negligence law as setting forth a broader principle of comparative fault (as many courts do), and by concluding that the policy underlying the comparative approach adopted by the legislature seemed applicable regardless of whether the defendant acted negligently or in a somewhat worse manner (recklessly). However, if the defendant had committed an intentional tort, the comparative negligence statute wouldn’t have applied. So that students have a clear understanding of the case, you might suggest that they review Chapter 6’s introduction to types of fault in tort cases (negligence, recklessness, and intentional wrongdoing).
Additional example: Problem #12.
B. Strict Liability
1. By way of introduction, stress:
a. What strict liability is and how it is different from the fault-based approaches of negligence and intentional torts.
b. The rationale for imposing it. When strict liability is imposed on an activity, the legal system often is telling the operator of that activity something along these lines: "O.K., what you're doing has enough social utility that we won't outlaw it, but it is sufficiently dangerous that you should shoulder the economic risk associated with it. And if you can pass the costs of bearing that risk mainly insurance costs on to consumers, then it's spread about through society and no one really gets seriously hurt."
c. The forms it assumes.
2. Abnormally dangerous activities
a. Here, the main question is what sorts of activities qualify. After giving a few examples, use the Dyer case to discuss the Restatement's factors for answering this question.
Dyer v. Maine Drilling & Blasting, Inc. (p. 255): The Supreme Judicial Court of Maine overrules a precedent that had established negligence principles as controlling cases alleging harm from defendants’ blasting activities. Instead, the court adopts strict liability as the controlling legal doctrine in such cases.
Points for Discussion: Have a student summarize the basic facts. Note that in adopting strict liability for blasting cases, the court decides it’s time to quit swimming against the tide. Most courts say that even though blasting is a necessary and important activity in some instances, strict liability should apply to it. Ask
students why blasting is typically classified as an abnormally dangerous activity. Work through the Restatement factors outlined in the court’s opinion.
b. Additional Example: Problems #10
2. Statutory strict liability
a. When you consider workers' compensation statutes, you may wish to incorporate Chapter 51's more complete discussion of the subject.
b. Briefly hit the other kinds of statutory strict liability. You might want to bring in Chapter 20'sdiscussions of Restatement (Second) § 402A and of the new Restatement (Third) of Torts: Product Liability
C. Tort Reform
1. Discuss the origins of the tort reform movement and the controversy that surrounds it. Also note typical tort reform devices and their objectives.
IV. RECOMMENDED REFERENCES:
A. W. PROSSER & W. KEETON, THE LAW OF TORTS. The classic torts hornbook.
B. M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 85-99 (1977). A useful analysis of, among other things, the evolution of modern negligence principles.
C. L. FRIEDMAN, A HISTORY OF AMERICAN LAW 409-27 (2d ed. 1985). Its treatment of the evolution of modern negligence principles includes a discussion of many seminal cases.
V. ANSWERS TO PROBLEM CASES:
1. Yes. Cingular owes no duty to Williams. Although it is widely understood that auto accidents are more likely when the driver is operating a cellular phone, responsibility for those accidents lies with the driver. The car accident traces back to the driver’s inattention, not to some fault with the phone. The causal link from the phone sale to the car accident, though does exist, is too attenuated to be called “proximate.” There is no way for Cingular to foresee, at point of sale, which phones will wind up in wrecked cars. Holding Cingular to a duty to protect against auto accidents would therefore force Cingular to close shop entirely, an unacceptable result for public policy. Williams v. Cingular Wireless, 809 N.E.2d 472 (Ind. Ct. App. 2004)
2. No. The Supreme Court of Kentucky held that the plaintiff could rely on negligence per se to establish the duty and breach of duty elements of her claim against Baize. The government safety regulation dealing with the unloading of logs was designed to protect persons, such as Hargis, who worked at sites where logs were being unloaded. Moreover, the harm experienced by Hargis was the very type of harm the regulation was meant to guard against. Therefore, the requirements for negligence per se were present. Hargis v. Baize, 168 S.W.3d 36 (Ky. Sup. Ct. 2005).
3. No, Sears has not breached a duty under the reasonable person standard. This is a landowner case and Hresil is an invitee. Therefore, the relevant duty is Sears's obligation to protect invitees against dangerous conditions of which it was actually or constructively aware. The court in Hresil v. Sears, Roebuck & Co., 403 N.E.2d 678 (Ill. Ct. App. 1980) concluded that Hresil could only prove that the gob was on the floor for ten minutes. This, it said, was insufficient for constructive notice. A tougher standard, it suggested, would make it too difficult to avoid the risk to customers. In effect, Sears would have had to run "phlegm patrols" down the store's corridors every ten minutes.
4. No. Delgado was an invitee to whom Trax owed a duty of reasonable care to keep the premises reasonably safe. That duty can include an obligation to take reasonable steps to guard against harm coming to the invitee at the hands of third parties who are on the premises, if such harm was foreseeable. Here, the relevant facts (including what Trax’s interior guard (Nichols) had observed) made it foreseeable that Delgado could experience
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
harm in the absence of reasonable safeguards. Those safeguards could include such measures as having more security guards on duty, ensuring that the outside security guard was at his post, or escorting Delgado to his vehicle, or matters of that nature. Whether Trax breached its duty of care was a matter to be considered on remand. Delgado v. Trax Bar & Grill, 113 P.3d 1159 (Cal. Sup. Ct. 2005).
5. Performance was not liable on respondeat superior grounds. With the accident occurring as Weese drove home from work, Weese was outside the scope of employment at that time. Neither was Performance liable for negligent hiring. Although Performance failed to verify that Weese had a driver’s license when he was hired (and also failed to check Weese’s driving record), Weese’s work reponsibilities did not then include driving for the company during the work day. Although driving during the workday later became part of Weese’s job and although Performance still did not check Weese’s driving record, any negative information learned in such a check probably would have influenced only Performance’s decision on whether to have Weese engage in work-related driving and would not have made any difference with regard to Weese’s after-work driving. Therefore, the fact that the accident occurred while Weese was driving home was again relevant. The court noted that had the accident occurred during the day, the plaintiffs’ negligent hiring claim would have had a better chance of success. Raleigh v. Performance Plumbing and Heating, Inc., 130 P.3d 1011 (Colo. Sup. Ct. 2006)
6. The Supreme Court of South Carolina reversed the lower court’s decision and remanded the case for a new trial because the legal instructions had the potential to confuse the jury and to do so in a way that gave an unfair advantage to the defendant. Hence, a new trial was warranted. Assuming that non-confusing legal instructions had been given, that the jury found Jack’s fault to be only negligence, and that the jury appropriately assigned 75% of the causation to Berberich because of his own negligence, the jury would have ruled correctly under South Carolina’s comparative negligence law. An instruction on recklessness was warranted here, according to the Supreme Court, which also held that even if Jack’s conduct were determined by the jury to have been reckless, Berberich’s own negligence should be compared with the fault on Jack’s part. In the course of these rulings, the Supreme Court interpreted the comparative negligence statute as a comparative fault statute. Berberich v. Jack, 709 S.E.2d 607 (S.C. Sup. Ct. 2011).
7. The Supreme Court of Indiana holds that the trial court correctly denied Kroger’s motion for summary judgment and that the Indiana Court of Appeals was correct in affirming the summary judgment denial. The court noted other courts’ decisions establishing that a business’s duty of reasonable care regarding its invitees may include an obligation to adopt security measures suitable to protect them against foreseeable acts by third-party wrongdoers who come on the premises. Here, sufficient evidence suggested foreseeability, warranting a conclusion that Kroger owed such a duty. On remand, key facts that were in dispute would then bear upon the issue of whether Kroger breached the duty. Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. Sup. Ct. 2010).
8. The Supreme Court of Oklahoma held that the trial court wrongly granted summary judgment in Carolina Forge’s favor. Given the nature of the business trip (which was sole reason why Garris and Billlups were sent to Joplin) and given Carolina Forge’s allowance of considerable discretion on the part of their employees in deciding how to allocate their time on such trips, there was a jury question as to whether Garris and Billups were within the scope of their employment at the time of the accident. Hence, summary judgment sh0uld not have been granted in favor of the defendant on the respondeat superior claim. Neither should the trial court have granted the defendant summary judgment on the negligent entrustment claim. Carolina Forge was aware that alcohol would be consumed on this business trip, which called for considerable entertaining of clients. Carolina Forge’s expense policies clearly
contemplated that alcohol would be involved in such entertaining. Carolina Forge also contemplated that Garris and Billups would be using a rental car. Under the circumstance, the Supreme Court ruled, there was a jury question as to whether Carolina Forge failed to use reasonable care in the sense contemplated by the negligent entrustment theory. Sheffer v. Carolina Forge Co., 306 P.3d 544 (Okla. Sup. Ct. 2013).
9 Yes. The U.S. Court of Appeals for the Fifth Circuit stated that the applicable proximate cause test under Texas law (which controlled the case) was whether the defendants “might by the exercise of ordinary care have foreseen that some similar injury [similar to what occurred in the case] might result” from the defendants’ breach of duty. The court concluded that the explosion as opposed to merely a fire was an unforeseeable consequence because even experts did not realize until this catastrophe occurred that FGAN was capable of exploding. Hence, the court reasoned, there was no proximate cause as to harms stemming from the explosion. Republic of France v. United States, 290 F.2d 395 (5th Cir. 1961).
10. No. Acrylonitrile is one of a large number of hazardous chemicals shipped in highest volume on the nation's railroads. Among the other materials that rank higher on the hazard scale are phosphorous (number 1), anhydrous ammonia, liquified petroleum gas, vinyl chloride, gasoline, crude petroleum, motor fuel antiknock compound, methyl and ethyl chloride, sulfuric acid, and chloroform. The U.S. Court of Appeals for the Seventh Circuit observed that the logic of the district court's opinion would dictate strict liability for all 52 materials that rank higher than acrylonitrile on the list, and quite possibly for the 72 that rank lower as well, since all are hazardous if spilled in quantity while being shipped by rail. Every shipper of any of the materials would therefore be strictly liable for the consequences of a spill or other accident that occurred while the material was being shipped through a metropolitan area. The Seventh Circuit stressed that no cases recognize so sweeping a liability. There was no reason, the court stated, to believe that negligence principles would not be perfectly adequate to remedy and deter, at reasonable cost, the accidental spillage of acrylonitrile from rail cars. The railroad network is a hub-and-spoke system and the hubs are in metropolitan areas. With most hazardous chemicals (by volume of shipment) being at least as hazardous as acrylonitrile, it is unlikely that the shipment thereof could be rerouted around all metropolitan areas in the country, except at prohibitive cost. One would hardly expect shippers, as distinct from carriers, to be the firms best situated to do the rerouting. Therefore, the court held, this was not an apt case for strict liability. Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990).
11. Yes, according to the U.S. Court of Appeals for the Fourth Circuit. In light of the facts, APCO had neither actual nor constructive knowledge of potential histoplasmosis risks and therefore did not owe Hoschar a duty of reasonable care. There was no evidence that anyone at APCO actually knew of such risks. The reference to histoplasmosis on the OSHA website, without more, was insufficient to give rise to a conclusion that constructive knowledge existed. Hence, it was not foreseeable to APCO that Hoschar and others were being exposed to such risks. Hoschar v. Appalachian Power Co., 739 F.3d 163 (4th Cir. 2014).
12. The South Carolina Supreme Court held that in view of South Carolina's adoption of comparative negligence, implied assumption of risk no longer is a complete defense to recovery in a negligence case. Instead, it is one of the factors to be balanced against the defendant's negligence in determining the parties' relative fault. The court effectively treated South Carolina’s mixed comparative negligence system as a comparative fault system. Ono remand, a question for the jury would be whether the plaintiff’s fault exceeded that of the defendant. Davenport v. Cotton Hope Plantation, 508 S.E.2d 565 (S.C. Sup. Ct. 1998).
