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Published on December 11, 2007

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Business Law and the Regulation of Business, 9th ed. Chapter 8: Negligence & Strict Liability (Part 2):  Business Law and the Regulation of Business, 9th ed. Chapter 8: Negligence & Strict Liability (Part 2) By Richard A. Mann & Barry S. Roberts Topics Covered in this Chapter:  Topics Covered in this Chapter I. Negligence A. Breach of Duty of Care B. Proximate Cause C. Injury D. Defenses to Negligence II. Strict Liability A. Activities Giving Rise to Strict Liability B. Defenses to Strict Liability Injury :  Injury Harm to Legally Protected Interest – courts determine which interests are protected from negligent interference. Burden of Proof – plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest. Defenses to Negligence :  Defenses to Negligence Contributory Negligence – failure of a plaintiff to exercise reasonable care for his own protection, which in a few States prevents the plaintiff from recovering anything. Virginia is one. Even the slightest negligence by plaintiff bars recovery and is a complete defense. But if defendant had a last clear chance to avoid the injury, plaintiff is not barred from recovery even though negligent. Defenses to Negligence:  Defenses to Negligence Comparative Negligence – damages are divided between the parties in proportion to their degree of negligence; applies in almost all States. Not in Virginia. Pure comparative negligence – damages divided between parties in proportion to degree of fault. Modified comparative negligence – plaintiff recovers nothing if plaintiff’s negligence is greater than defendant’s negligence, otherwise plaintiff recovers in proportion to the fault like in pure comparative negligence. This is the most common method. Defenses to Negligence:  Defenses to Negligence Assumption of Risk – plaintiff's knowing and voluntary express consent to encounter a known danger, some states still apply implied assumption of the risk. Express assumption of the risk – normally arises by contract, which is strictly construed. Such agreements are not always enforceable. Implied assumption of the risk – actions by the plaintiff signify plaintiff assumed the risk of intended or ongoing activities Defenses to a Negligence Action:  Defenses to a Negligence Action Is defendant negligent? Has plaintiff assumed the risk? Defendant prevails Defendant prevails Defendant loses Is plaintiff contributorily negligent? Is there comparative negligence? Did defendant have a last clear chance? Defendant prevails Defendant loses Damages are apportioned Yes No No Yes No No Yes Yes Yes No Dukat v. Leiserv, Inc., 6 Neb. App. 905 (1998):  Dukat v. Leiserv, Inc., 6 Neb. App. 905 (1998) Plaintiff enters bowling alley by only sidewalk to building. Ice on sidewalk. P bowls for 3 hours, and consumes 3 beers. Leaves by same sidewalk. Still covered in ice. P slips and falls. Defendant pleads contributory negligence and assumption of risk. Verdict and judgment for D. Held: reversed and remanded for new trial. The defense of assumption of the risk could not apply to these facts. When P left the bowling alley she did not voluntarily assume the risk of walking on the icy sidewalk, as that was the only means of egress from the building. There was no safer choice. On remand, D would still have contributory negligence as a defense for the jury to consider. Strict Liability :  Strict Liability Definition – liability for non-intentional and non-negligent conduct. Liability without fault. Activities Giving Rise to Strict Liability Abnormally Dangerous Activities – involve a high degree of serious harm and are not matters of common usage. Example: blasting. Keeping of Animals – strict liability is imposed for wild animals and usually for trespassing domestic animals. Cats and dogs are an exception. Products Liability – imposed upon manufacturers and merchants who sell goods in a defective condition unreasonably dangerous to the user. Klein v. Pyrodyne Corporation, 117 Wash. 2d 1 (1991):  Klein v. Pyrodyne Corporation, 117 Wash. 2d 1 (1991) Improper discharge of fireworks injures plaintiff. P sues on theory of strict liability for abnormally dangerous activity. Court lists 6 factors to consider in determining whether an activity is abnormally dangerous. Defenses to Strict Liability :  Defenses to Strict Liability Contributory Negligence – is not a defense to strict liability. Liability is not based on negligence. Comparative Negligence – most States apply this doctrine to products liability cases. Assumption of Risk – is a defense to an action based upon strict liability. Business Law and the Regulation of Business, 9th ed. Chapter 30: Relationship with Third Parties Pages 592-597:  Business Law and the Regulation of Business, 9th ed. Chapter 30: Relationship with Third Parties Pages 592-597 By Richard A. Mann & Barry S. Roberts Tort Liability of Principal :  Tort Liability of Principal Direct Liability of Principal – a principal is liable for his own tortious conduct involving the use of agents. Authorized Acts of Agent – a principal is liable for torts she authorizes another to commit. Unauthorized Acts of Agent – a principal is liable for failing to exercise care in hiring, instructing, supervising, or controlling an employee or other agent whose unauthorized acts cause harm. Connes v. Molalla Transport System, Inc., 831 P2d 1316 (Colo. 1992):  Connes v. Molalla Transport System, Inc., 831 P2d 1316 (Colo. 1992) Employer hires truck driver using standard procedures, which includes questions about criminal background, but no independent investigation. Employee falsely denies criminal background. While hauling freight for employer, employee leaves truck and commits a sexual assault in lobby of hotel. Victim sues employer for negligent hiring. Held: duties of long haul driver involve little contact with members of the public. Employer had no duty to independently investigate the criminal background. The court states a clear distinction between this tort and vicarious liability arising from respondeat superior. Vicarious Liability of Principal for Unauthorized Acts of Agent:  Vicarious Liability of Principal for Unauthorized Acts of Agent Respondeat Superior – an employer is liable for unauthorized torts committed by an employee in the course of his employment. Employer has right of indemnification against the employee. Independent Contractor – a principal is usually not liable for the unauthorized torts of an independent contractor. The relationship of employee or independent contractor is distinguished by principal’s “right to control.” Rubin v. Yellow Cab Company, 154 Ill.App. 336 (1987):  Rubin v. Yellow Cab Company, 154 Ill.App. 336 (1987) Cab driver assaults and batters another driver who blocks his traffic lane. Held: actions of cab driver were outside the scope of employment, so employer not liable. The court distinguished cases involving batteries by bartenders or bouncers, in which the employer is held liable. Vicarious Liability of Principal for Unauthorized Acts of Agent:  Vicarious Liability of Principal for Unauthorized Acts of Agent Unauthorized and tortious misrepresentation by agent: Principal is liable whether agent is employee or independent contractor. Independent Contractors:  Independent Contractors Generally the principal is not liable for torts of independent contractor. Exceptions: Principal may have direct liability for negligent hiring of independent contractor. Non-delegable duties (e.g. maintaining safe conditions on principal’s land). Ultra-hazardous activities Criminal Liability of Principal :  Criminal Liability of Principal Authorized Acts – the principal is liable if he directed, participated in, or approved the criminal acts of his agents. Unauthorized Acts – the principal may be liable either for a criminal act of a managerial person or under liability without fault statutes.

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