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Tort Law

Negligence and Liability

• 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
• 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

• 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
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
Product Liability

• Products must be made safe for the

“intended user.”
• Many disclaimers/waivers are often
invalidated by the courts.

• 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