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Quote of the DayQuote of the Day

“The life of the law has not been logic; it has been experience.”

Oliver Wendell Holmes, Jr., Supreme Court Justice

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66Business Law for a New CenturyBusiness Law for a New Century

Negligence --Negligence --

Duty of due care -- there must be a duty owed to the plaintiff.

Breach -- duty must be breached. Factual cause -- the injury must have been

caused by the defendant’s actions. Foreseeable harm -- it must have been

foreseeable that the action would cause this kind of harm.

Injury -- the plaintiff must have been hurt.

To win a negligence case, the plaintiff must prove that the defendant failed in five areas:

“The Unintentional Tort”

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66Business Law for a New CenturyBusiness Law for a New Century

Breach of Duty A defendant breaches his duty of due care by

failing to behave the way a reasonable person would under similar circumstances.

Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers.

Negligence per se -- in special cases, legislatures set a minimum standard for certain groups of people (esp. children). When a violation of that statute hurts a member of that group, the duty is breached.

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Factual Cause & Foreseeable Harm Factual Cause -- if the defendant’s breach

ultimately led to the injury, he is liable.• Does not have to be the immediate cause of

injury, but must be the first in the direct line.

Foreseeable Harm -- to be liable, this type of harm must have been foreseeable.• The defendant does not have to know exactly

what would happen -- just the type of event.

Res Ipsa Loquitur -- in a few cases, the defendant must prove he was NOT negligent or the facts imply that his negligence caused the injury.

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Ex: Factual Cause & Foreseeable HarmEx: Factual Cause & Foreseeable Harm

Mechanic fails to fix customer’s brakes, which

causes...

Car accident, car hitting bicyclist

Mechanic is liable to cyclist

Car accident, car hitting bicyclist

Noise from accident startles someone who

falls out a window

Mechanic is NOT liable for falling person

Factual cause and foreseeable type of injury

Factual cause, but no foreseeable type of injury

Car accident, cardoes not hit

bicyclist

Bicyclist hits pothole and

crashes

Mechanic is NOT liable to

cyclist

No factual cause

Mechanic fails to fix customer’s brakes, which

causes...

Mechanic fails to fix customer’s brakes, which

causes...

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Injury & Damages Injury -- plaintiff must show genuine injury

• Future injury may be compensated, but must be determined at the time of trial.

Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

A bystander, unharmed physically, may recover for emotional distress if...• She was near the scene of the injury,• Seeing the injury caused immediate shock, and• She is a close relative of the (physical) victim

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NegligenceNegligence Contributory Negligence

• In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant.

Comparative Negligence• In most states, if the plaintiff is negligent, a

percentage of negligence is applied to both the defendant and the plaintiff.

• The plaintiff can recover from the defendant to the percentage that the defendant is negligent.

• In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.

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Strict LiabilityStrict Liability

Defective Products-- may incur strict liability.

Ultrahazardous Activities -- defendants are virtually always held liable for harm.• What is ultrahazardous? Includes using harmful

chemicals, explosives and keeping wild animals.

• Plaintiff does not have to prove breach of duty or foreseeable harm.

• Comparative negligence does not apply -- defendant engaging in ultrahazardous activity is wholly liable.

Some activities are so dangerous that the law imposes a high burden on them. This is called strict liability.

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“When someone’s person or property is hurt, how far should society extend liability? The law

has struggled for centuries to find compensation for the injured without making every citizen the

insurer of all others.”

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66Business Law for a New CenturyBusiness Law for a New Century

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