19
Crimes Intentional Torts Negligence & Strict Liability Intellectual Property & Unfair Competition © 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Embed Size (px)

Citation preview

Page 1: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

CrimesIntentional Torts

Negligence & Strict LiabilityIntellectual Property & Unfair

Competition

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Page 2: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Negligence and Strict Liability

Mistakes are a fact of life. It is the response to error that counts.

Nikki Giovanni

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Page 3: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Learning Objectives

The Elements of Negligence Defenses to Negligence Special Doctrines Related to Negligence

7 - 3

Page 4: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

The elements of a negligence claim are Defendant owed a duty of care to

plaintiff, Defendant committed a breach of duty, Breach was actual and proximate cause

of Injury experienced by the plaintiff

Negligence

7 - 4

Page 5: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant’s conduct A duty may arise if a special relationship

existed between the parties Examples of a special relationship:

doctor-patient, lawyer-client, accountant-client

Duty of Due Care

7 - 5

Page 6: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

If a duty existed, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances Reasonable person standard

The test focuses on defendant’s behavior, not defendant’s intent Reckless behavior may be unreasonable

Breach of Duty of Due Care

7 - 6

Page 7: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Injuries may include bodily or emotional injury, and property or economic damage

Causal link between the alleged misconduct and the injury requires: Actual cause: plaintiff would not have been

hurt “but for” defendant’s breach of duty (act or omission)

Proximate cause: plaintiff’s injury was foreseeable consequence of defendant’s act or omission

Causation and Injury

7 - 7

Page 8: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

An event that occurs after initial breach of duty may worsen a plaintiff’s injury Example: plaintiff injured in accident and

while unconscious, a thief steals the plaintiff’s wallet

If latter event is foreseeable, defendant will be deemed liable

If latter event not foreseeable, defendant will be absolved from liability Example: Stahlecker v. Ford Motor Co.

Causation and Injury

7 - 8

Page 9: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself)

Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) harm would not occur in absence of negligence, and (3) plaintiff not responsible for his own injury Example: after abdominal surgery, patient

complains of pain in abdomen and X-ray shows surgical clamp left in abdomen

Causation and Injury

7 - 9

Page 10: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Contributory negligence is the plaintiff ’s failure to exercise reasonable care for his/her own safety Example: auto accident in which

defendant rear-ended plaintiff but alleges that plaintiff was talking on a cell phone and not driving carefully

Defenses:Contributory Negligence

7 - 10

Page 11: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Contributory negligence used to be a complete defense, but most states enacted comparative negligence systems in which a court or jury will determine relative negligence of parties and award damages in proportion to the degrees of negligence

Comparative Negligence

7 - 11

Page 12: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Assumption of risk is the plaintiff’s voluntary consent to a known danger Example: plaintiff

goes snowboarding and breaks leg during a fall

Defenses:Assumption of Risk

7 - 12

Page 13: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

One can expressly assume the risk of injury by entering into a contract that attempts to relieve the defendant of a duty of care otherwise owed to plaintiff Such contract provisions are called

exculpatory clauses

Defenses:Assumption of Risk

7 - 13

Page 14: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Premises liabilityNegligence Per SeStrict Liability

Special Doctrines

7 - 14

Page 15: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Based on the duty a property owner or tenant has to those on the property

Duty varies with type of person on property

Invitee (business visitor or member of the public) Owner or tenant must exercise

reasonable care for safety of his/her invitees

Premises Liability Cases

7 - 15

Page 16: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Licensee (those on property for his/her own purpose) Owner or tenant obligated only to warn

licensee of hidden, dangerous conditions Trespasser (those on property illegally)

Owner or tenant owes no duty, but may not willfully injure trespassers

Premises Liability Cases

7 - 16

Page 17: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

The defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff (1) was within the class of persons intended to

be protected by the statute or other law, and (2) suffered harm of a sort that the statute or

other law was intended to protect against

Negligence Per Se

7 - 17

Page 18: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Liability without – or irrespective – of fault Thus, a defendant is liable even though

s/he did not intend to cause harm and did not act recklessly or negligently

Basic for product liability cases

Strict Liability

7 - 18

Page 19: Business Law: Chapter 7, The Ethical, Global, and E-Commerce Environment, 14th ed.,by Mallor, Barnes, Bowers, Langvardt

Imposing strict liability is a social policy decision that risk associated with an activity, especially an abnormally dangerous activity, should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk

Strict Liability

7 - 19