Tort Law Part 2 Negligence and Liability. Negligence Most common tort Accidental or Unintentional...

Tort Law

Part 2

Negligence and Liability

Negligence

• Most common tort

• Accidental or Unintentional Tort

• Failure to show a degree of care that a “reasonable” person would have shown in the same circumstances

Elements of Negligence

Victim must prove all 4:

1. Defendant owed a duty of care

2. Defendant breached duty by being careless

3. Defendant’s carelessness was the Proximate Cause of harm

4. The plaintiff was Actually Hurt by the defendant’s carelessness

1. Duty of Care

• Obligation to use a reasonable standard of care to prevent injury to others

• Examples:– Parents duty to care for children

– Landlords have a duty to keep a residence safe tenants.

– Professionals (doctors, lawyers, teachers) • held to a higher degree of care than an average person due to the fact

that they take oaths in their profession

2. Breach of Duty

• Fail to use reasonable care

• Reasonable Person Test: must be as careful as a “reasonable person” would be in the same situation

• Consider: – how likely an act is to cause harm– how serious the harm would be– what burden is involved in avoiding the harm

3. Proximate Cause/Legal Cause

• Conduct resulted in the injury

• Court uses the “Foreseeability” test– Asks if the defendant could have foreseen the

possible outcome of their conduct.

4. Actual Harm

• Did the plaintiff suffer some:

– Physical injury

– Emotional injury

– Property damage

– Financial loss

Defenses to Negligence

• Prove that 1 of the 4 elements of negligence was missing.

• Argue:

1.Owed no duty to plaintiff

2.Their conduct WAS “reasonable”

3.Conduct NOT proximate cause of injury

4.Plaintiff suffered NO injuries

Other defenses to Negligence…

• Contributory Negligence: – the victim helped cause his or her own injury

• Comparative: – Each party contributed to the negligence – 50% rule: if plaintiff negligence is more than half

they get nothing

• Assumption of Risk: – The plaintiff knew of the risk involved and still took

the chance of being injured

Dram Shop Laws & Negligence

• “Dram Shop” – business or person serving alcohol. (English term coming from gin being sold by the spoonful or “dram”)

• Dram Shop Laws: If a business or person serves alcohol irresponsibility they will be held liable for any and all injuries as a result of the intoxicated person(s).

• What are the implications of this law???

Strict Liability

• Legal responsibility for damages/injury, even if there was no fault or negligence no matter how careful one was.

• Negligence vs. Strict Liability–Strict Liability focuses on safety of product–Negligence focuses on the conduct of

manufacturer/people

Strict Liability Examples

• Equipment• Dangerous materials (explosives)

– Radioactive/hazardous materials– Acids/lethal substances

• Poisonous snakes• Assault weapons• Wild Animals

Product Liability

• Injures caused by product defects– Manufacturing– Design– Insufficient Instructions or Warnings

• Injured party must prove:– Item was defective– Defect caused the injury– Defect rendered the produce unreasonably

dangerous

Product Liability

• Products must be made safe for the “intended user.”

• Many disclaimers/waivers are often invalidated by the courts.

• Injured party's right to recover for personal injury even after the victim dies.

• The victim's estate assumes the victim's claim against the negligent – Example: you were injured in a car wreck and filed a lawsuit.

You die before the case is heard. You estate may continue the lawsuit

• Usually involves damage to personal or real property.

Survival Statutes

Wrongful Death Statutes

• The right of 3rd parties affected by a person’s death to bring a lawsuit.

• These lawsuits are filed in cases of negligence or intentional conduct of the defendant

• Purpose is to provide relief to family members who have been injured emotionally or financially as a result of another family member death.

Wrongful Death Statute in PA

• Mostly Can only be filed by:– Spouse– Child– Parent/guardian– Personal representative (appointed by state to

represent beneficiaries)

Damages

• Compensatory Damages: Covers costs associated with injury or death– Medial expenses– Loss of wages– Funeral costs

• Punitive Damages: awarded to punish a wrong– Intentional wrong doing– Reckless negligence