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An Easy Guide to Strict Liability Tort

An Easy Guide to Strict Liability Tort

What is Strict Liability Tort?
Strict liability is the imposition of liability without fault for damages on the defendant.  This is different from negligence as the burden of proof is not placed on the plaintiff to prove that the damages were a result of the defendant’s negligence, only that damages occurred and the defendant is responsible.  In strict liability, there is the assumption that the manufacturer or supplier was aware of the defect before it reached the plaintiff. 
How does a Plaintiff Claim Strict Liability?
For a plaintiff to make a claim based on manufacturing defects, the following must be true:
The defendant is the manufacturer of the defective product
The product contained defects when purchased by the plaintiff
The defect existed when the defendant sold the product
The defect was responsible for injury to the plaintiff
The injury sustained by the plaintiff must be foreseeable by the manufacturer, within reason. 
Additionally damages may be awarded if the plaintiff can prove that the defendant was aware of the defect when the product was sold to the consumer.

What are the Exceptions for Manufacturers?
The manufacturing is exempt from liability if the product is inherently unsafe and the consumer is aware of that danger.  The danger must be common knowledge to the general public.  

What is the Comparative Negligence Defense in Strict Liability?
Comparative negligence takes into account the degree of negligence on the part of the plaintiff when calculating damages due to the plaintiff.  The reduction is equal to the percentage to which the plaintiff’s fault contributed to his or her injury.  While not all jurisdictions will allow comparative negligence as a defense, there is the general acceptance that if the plaintiff was aware of the inherent risks of the product, they will not be able to recover damages.


What are the Responsibilities of Sellers and Bailors?
The lending of personal property to another with the agreement to return the property at a later time is called bailment.  The owner is known as the bailor and the recipient of the property is the bailee.  If there are inherent dangers in the use of the property, the bailor is responsible for warning the bailee of those dangers.  Therefore, the bailor is liable for negligence if appropriate notice is not given to the bailee.  Similarly, the seller assumes responsibility from the manufacturer to warn the consumer about the dangers of the product.

How does Strict Liability Relate to Ultra Hazardous Activity?
The “ultra hazardous” activity doctrine states that certain activities are create a serious risk of danger and that liability must be placed on persons engaging in this activity regardless of fault.  In this legal definition the plaintiff must have engaged in an ultra hazardous activity which caused the plaintiff to suffer injury, loss or damage and the defendant should have recognized the likelihood or damage to the plaintiff during the course of this activity.  Some examples of ultra hazardous activity include demolition and the handling of dangerous animals. 

Negligence In Depth

Negligence In Depth


Definition
Negligence is the failure of an individual or party to adhere to common standards of conduct that results in injury.  This includes wrongful conduct that injures others such as the failure to take adequate safety precautions or the failure to render required services to the plaintiff.  In negligence, the plaintiff must establish that the defendant failed to take adequate and reasonable precautions which resulted in the injury.
What is the Assumption of a “Reasonable Person?”


In negligence cases, the defendant is judged by the community’s standard of safe conduct.   This is not the measure of typical conduct for the community but rather the community’s acceptance of safe practices at large.  In this manner, even when damage is unintentional, the defendant is liable is he or she failed to act as a “reasonable person” in the situation that caused injury.  This standard takes into account the individuals, knowledge and experience regarding the situation, to determine if the individual possesses the skills to act reasonably in the negligence scenario.
What Are the Other Standards Used to Determine a “Reasonable Person?”
The law may take into account:
Special Skills – How the individual engaging in an activity that requires a specific skill set engages in the activity, compared to an average member of the group with the same skill set.  A person engaged in the activity is assumed to have the common skills of all others engaging in the activity.  The law does not take into account the experience of the individual with these skills, with no distinguishing between beginners and others at higher levels of experience.
Perception – A “reasonable person” must be aware of his or her surrounding and act accordingly to avoid damage and injury.  Recklessness or carelessness on the part of the individual constitutes negligence.
Emergencies – Negligence occurring under emergency conditions where reasonable conduct would have been otherwise excused.  An individual may also be negligent for failing to anticipate an emergency, such as a lack of fire extinguishers in case of a fire.
Who cannot be Found Negligent for Their Actions?
Exception may be made with respect to:
Age – most children under an age that varies by jurisdictions cannot be found negligent for their actions.  In these cases, an adult is usually expected to anticipate their actions and behavior.  There is the understanding that they lack the mental development to be responsible for their actions.  There is an exception for children engaging in adult behavior, such as operating a motor vehicle.
Physical Characteristics – If there are existing limitations such as a handicap that prevent the individual from meeting the common standard of conduct.  This makes allowances against holding persons unable to meet these standards that are physically impossible.  The individual with the handicap must be aware of his or her physical limitations and act within reason to prevent injuries to others.
How does one prove negligence?
The plaintiff has the burden of proof in negligence cases in that they must prove that the defendant did not act accordingly with the accepted code of conduct.  The defendant must prove that if they have violated a statute, that they did so while acting as a “reasonable person” to avoid greater injury.  Expert testimony may be used to determine if a person with special skills acted improperly.  Additionally, one may prove that the defendant violated a customary practice, such as a safety precaution that would have prevented injury.  Lastly, circumstantial evidence may be used to indicate negligence on the part of the defendant.

Negligent Homicide Defined

Negligent Homicide Defined

How can murder be due to negligence?
There are a number of ways the negligence of others can lead to the unlawful killing of another individual.  For instance, failure to follow adequate safety rules may lead to the death of employees.  Failure to follow rules and regulations when manufacturing consumer products may also violate common standards of conduct, leading to the death of others.
What are types of negligent homicide?
  • Professional negligence – Whenever the conduct of a professional while in the process or as a result of rendering services create circumstance that lead to the death of another individual, then that professional has committed negligent homicide.  A doctor, for example, may fail to follow standards of hygiene expected by society and his professional peers.  When this breech of professional conduct causes a deadly infection in a patient, it can be argued that the doctor’s negligence in providing sanitary conditions creates circumstances that lead to the patient’s death.  The doctor lacks malice and intent but is otherwise responsible due to his negligence.
  • Vehicular negligence – recklessness in the operation of any motor vehicle from cars to boats and plane can result in the accidental death of others.  Even if the operator is not director involved in the physical act that kills the victim, he or she may have created dangerous circumstances that caused the accidental killing.  There are additional penalties and a high assumption of mens rea or “guilty mind” if the individual knowingly operated the motor vehicle with a suspended or expired license or failed to take adequate precautions.  For example, in New York State, the operator of a vehicle that kills a person while carrying over eighteen tons of hazardous materials can be changes with a class D felony.  The operator of a vehicle that kills an individual while driving with a suspended license will be charged with Vehicular manslaughter in the first degree, which is a class C felony.
  • Intoxication – excessive intoxication may lead to an increase in reckless behavior, which in turn, can potentially create a hazardous situation for others.  These circumstances ultimately result in the unlawful killing of the victim, but there is a low assumption of mens rea as the accused frequently lacks the malice and intent to harm the victim.  The individual may be found negligent if his intoxicated state contributed to unsafe circumstances, as his recklessness is assumed to be atypical behavior and a deviation from the conduct of a “reasonable person.”
How do jurisdictions normally classify negligent murder?
Should the negligent actions of an individual result in the death of another, then most jurisdictions will find grounds from criminal liability.  Negligent homicide is typically classified as involuntary manslaughter, due to the implied lack of malice and intent.  Should the prosecutor or investigators discover malice and/or intent, then the mens rea of the accused will be upgraded from “negligent” to “knowingly” or “purposely” seeking the death of the victim.  As mentioned above, certain violations of other safety laws, such as failure to obtain proper permits or licenses will cause charges to be upgraded in severity.
Source: New York State Penal Code

Negligence Per Se In Depth

Negligence Per Se In Depth

What is negligence per se?
Negligence per se is negligence through the violation of statues and regulations that causes harm to the defendant.  In this case, the “standard of care” is determined by a criminal statute, administrative regulation or municipal ordinance that is applied to determine the penalties in a civil case.  The “standard of care” is the degree to which a reasonable person should be watchful and cautious in the set of circumstances that resulted in the injury of another party.  For example, the “standard of care” in a DUI case would assume that a reasonable person would not operate a moving vehicle while inebriated.
For an action to be negligence per se, it must:
Have violated a statute that provides for a criminal penalty but not civil penalties
Have caused harm to a member of the class originally protected by the statute.
Have a plaintiff as a member of the class protected by the original statute.
How negligence per se is applied in civil court?
A lawsuit may be brought against a party if they are believed to have failed in exercising the due diligence expected of reasonable persons.   The defending party in this case, violated their duty of care by failing to act according to their circumstances.  The defendant has also committed a criminal penalty which would have been resolved in a higher court.
What is a standard of care?
The legal definition of “standard of care” is the degree of caution and vigilance expected of by a reasonable person during any action that involves injury to another party.  This definition is subjective and varies from case to case.  There is a distinction between professional and non-professional standards, which professional standards of care set by precedent with others of the same profession.  Nonprofessional standards of care are set by the community and include ordinances such as trash disposal and speeding restrictions.  Lastly, the standard of care can differ if there is a preexisting agreement between the two parties.  If the plaintiff has paid to defendant for a higher standard of care that was violated, then this will be taken into account during the case.
 
What is an example of negligence per se?
A car breaking the speed limit and injuring a pedestrian would be negligence per se.  In this instance, the law provides for a criminal penalty, but not a civil penalty.  The plaintiff, protected by anti-speeding statues is a member of the protected class that the statute aims to protect.  The driver of the car can be charged with negligence per se for failing to obey the statute and adhering the standard of care expected of him while operating a motor vehicle.  A reasonable person would obey the speed limit and exercise due diligence when driving a car, but in this case, the defendant did not, which allows him to be charged with negligence per se in civil court in addition to criminal penalties.
 
 
Source: 
 
US Legal – https://definitions.uslegal.com/s/standard-of-care/
Lexis Nexis – https://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts06.htm

Gross Negligence Fact You Must Know

Gross Negligence Fact You Must Know

What is Gross Negligence?

Gross negligence is a severe lack of due diligence on the part of the defendant that represents a lack of concern for the likelihood that injuries will result.  The distinction here is that the defendant’s conduct is exceptionally below the conduct of a “reasonable person.”  In a case involving gross negligence, punitive damages may be awarded in addition to general and special damages.

What are the limitations on gross negligence?

Generally speaking, healthcare professionals and law enforcement are protected from liability when dealing with emergencies another other job functions.

In most states, health officials and employees are protected against criminal or civil liability except for “wanton and willful misconduct”

– Healthcare professionals that respond to life threatening emergencies

– First responders at emergencies

– School nurses and professionals that administer medication and immunizations to pupils

Still, healthcare workers are expected to know the risks of administering aid or medication under the direction of others.  They may be found guilty of negligence if they knowingly administer drugs that could cause serious harm.  Additionally, in times of disaster, there are several statues that protect relief workers and those that provide shelter to the displaced. Contact a negligence lawyer to acquire legal advice and assistance.

How does it differ from willful and wanton conduct?

Willful and wanton conduct implies that the damages are intentional while behaving recklessly.  In this case, the defendant’s actions constitute a conscious disregard for his or her safety and the safety of others.  This differs from gross negligence in that the assumption is that the damages are unintentional, but caused by a willful disregard for the safety of others.  In both cases, the defendant has acted recklessly without regard for the well-being of others.  Any action on the part of the plaintiff that contributed to his or her injury is not willful and wanton conduct but rather gross negligence.

What is an example of gross negligence?

A building owner with knowledge of the fire code but willfully refuses to provide fire extinguishers and adequate fire exits will be found guilty of gross negligence on top of other charges should bodily harm or property destruction happen as a result of a lack of safety precautions in an unsafe environment.  A “reasonable person” would follow the fire code and abide by it to protect the well being of both him and others that rely in the safety of the establishment.  This example would be willful and wanton conduct if the defendant had perhaps locked employee exits during a fire emergency.

Negligence: Four Elements

Negligence: Four Elements

WHAT IS NEGLIGENCE?

Negligence refers to a cause of action where a plaintiff may assert a civil tort case against a defendant.  In order to meet a prima facie (on its face) case for negligence a plaintiff must definitively prove the following four elements:
· That there was a duty on the part of the defendant to conform to a certain standard of conduct.

· That that defendant breached that duty
· The breach of duty was, not only the actual cause, but the proximate cause of injury

· There are damages
WHAT IS THE STANDARD OF CARE


 
The standard of care that is used in negligence cases is that of the reasonably prudent person.  It is an objective view.  In other words the question is not whether the defendant thought he/she was acting reasonably but whether an ordinary person on the street would have deemed that reasonable. 

 
The standard of care, for negligence actions, is not concerned with mental deficiencies.  According to tort law incompetence is not an excuse.  An individual with an IQ well below average is held to the standard of the reasonably prudent person for a normal IQ.  Physical deficiencies take on a different standard though.  Physical attributes and deficiencies are measured by the reasonably prudent person with that condition.  Someone who is blind will be measured against the reasonably prudent blind person.  A person who is a master rifleman will be measured against the reasonably prudent person with the same skills, eyesight, etc. as a master rifleman.
 

There are supplemental standards of care that are frequently used in negligence actions.  These include children, common carriers (innkeepers, airlines, etc.), and professionals. 
 

WHAT IS THE DIFFERENCE BETWEEN ACTUAL AND PROXIMATE CAUSE?

 

In a negligence action the plaintiff should find that finding (1) duty; (2) breach of duty; and (3) damages are straightforward.  The question that remains is: what is the difference between actual and proximate cause?
 

In a negligence action suit, the plaintiff must definitively prove that the defendant was both the proximate and actual cause of the injury.  The definition of actual cause is that “if not for the action by defendant the injury would not have occurred.” It is easier to think of this as the “But for” test.  “But for Dana leaving her skateboard on the steps Peter would not have slipped on it and broken his leg.” Here the leaving of the skateboard on the steps was the actual cause of Peter’s injury. 

 
Not only does the negligent actions by the defendant need to meet the “but for” test for actual cause but it must also be the proximate cause, also known as legal causation.  In order for the proximate cause prong to be met the defendant’s actions must have been reasonably foreseeable.  Courts are reluctant to find a defendant guilty of negligence when his actions, even though they were the actual cause, were interrupted by superseding, unforeseeable actions.  For example, if Dana did not properly inspect her vehicle on a timely basis and failed to notice the brakes were worn she would be negligent if she hit another vehicle because of the faulty brakes.  However, if a bolt of lightning caused Dana’s car to accelerate into another vehicle she would not be found negligent.  This is because, even though, she was negligent in maintaining the brakes the lightning bolt was an unforeseeable intervening cause.
 

If a Plaintiff has met the aforementioned elements of a prima facie case then a suit in negligence may be successful.

Negligence case law

Negligence case law


PALSGRAFF V. LONG ISLAND RAILROAD

BACKGROUND
The quintessential case involving the extent of liability in a negligence claim is Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928).  Palsgraff involved a man climbing aboard a Long Island Railroad train carrying a package.  An employee of the railroad aided the man in getting on the train and while doing so the man dropped a package that, unbeknownst to the employee or anyone else other than the man carrying the package, contained fireworks.  When the fireworks fell to the ground it caused a minor explosion that sent shockwaves through the train car causing injury to Palsgraff (the plaintiff).  Subsequently Palsgraff sued the Long Island Railroad in tort for negligence.  Both the NY State trial court and the Appellate court found in favor of the plaintiff and on appeal the Court of Appeals of NY (New York’s highest court) reversed, finding for the defendant, Long Island Railroad.
HOLDING
In making its decision the court confronted two (2) issues: (1) how is the duty of care that is owed determined; and (2) to whom does a party owe the duty of care to?
In determining who the duty of care is owed the court found that the duty must be owed to a person that can reasonably be foreseen under the circumstances.  Here, although the defendant, railroad company, owed a duty of care to the man carrying the package the defendant DID NOT owe a duty of care to the plaintiff because it was unreasonably foreseeable that the package contained fireworks and that the mishandling of the package would result in injury to the plaintiff, who was at the other end of the car.  The court referred to this as the “Zone of Danger.”
This is a perfect example of how an injury that may have resulted from a defendant’s negligence may not be imputed upon them because the DUTY OF CARE that the defendant had was to all foreseeable plaintiffs and the injury that resulted from the firework explosion was not forseeable.
BYRNE V. BOADLE
To grasp the idea of proximate and actual causation the case of Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863) shows a cut and dry model.  This case involves the legal principle of res ipsa loquitur, which essentially means, “The thing speaks for itself.”
BACKGROUND
The plaintiff in this action was walking down the street when a barrel fell upon him while directly under the defendant’s flour shop.  At trial a witness explained that he saw a barrel fall from the window of the flour shop upon the plaintiff’s head but there was no evidence of the reason for it.
HOLDING
The court found for the plaintiff citing the doctrine of res ipsa loquitor.  The court surmised that the facts, in and of themselves, showed that the barrel was in the possession of the defendant at the time and he had control over it.  The courts view was that there is a presumption of negligence when a party is in sole control of the instrument of the injury and that the injury would not have existed without negligence.
This is a prime example of actual and proximate causation.  The court found that the defendant was the actual cause because “but for the negligence of defendant the barrel would not have rolled out the window.”  The court also found the defendant to be the proximate cause.  Since there were no intervening forces and the barrel fell directly from the possession of the defendant unto the head of plaintiff there were no intervening forces and it was completely foreseeable that due to the defendant’s mishandling of the barrel this injury could reasonably occur.

Medical Malpractice Cases

Medical Malpractice Cases

RES IPSA LOQUITOR; WHAT IS THIS?

Res Ipsa Loquitor is a legal doctrine that essentially means, "The thing speaks for itself." As discussed in the section for negligence cases, res ipsa loquitor is often asserted in negligence actions when there is no other way that the injury could have occurred unless it was caused by the defendant's negligence.

This is often the case in medical malpractice suits because of a number of reasons which include the medical professional's expertise in dealing with the matter; the availability and awareness of the patients previous medical history including allergies, prior treatment, etc; and often the sedation of the patient at the time that the medical malpractice occurs.  Although these examples are inclusive they are not exclusive and there are other factors.  Due to the fact that it is more probable than not that the medical professional is in full control of the instrumentalities of a medical procedure the doctrine of res ipsa loquitor is often used by the plaintiff in these medical negligence cases. Contact a medical malpractice lawyer to acquire legal advice and assistance.

YBARRA V. SPANGARD

BACKGROUND

A perfect example of the liability of medical professionals can be shown in the case of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (Cal.1944).  In this action the Ybarra, plaintiff, was injured when he went in for a routine appendectomy and came out of surgery with a sharp pain in his neck and shoulder that eventually led to paralysis.  The plaintiff sued based on res ipsa loquitor and the trial court granted a non-suit.  The plaintiff appealed.

HOLDING

On appeal the defendant's, the physicians and nurses, claimed that it was impossible to determine who was actually at fault in the matter because they were all working as a team on the surgery and one sole tortfeasor could not be pinpointed.  In finding for the plaintiff the court asserted that res ipsa loquitor does not require that one individual be at fault.  The court claimed that the issue was whether the defendant had the right of control and not necessarily actual control.  It was concluded that while undergoing a medical operation all parties involved, and in control over the patient may be held liable. 

Thinking about it in a logical way the court reached a common sense conclusion that if there can be no liability if there is more than one tortfeasor then it would be in the best interests of those medical professionals involved to deny wrongdoing so as to escape liability.

WHY IS THIS CASE IMPORTANT?

This case is important in that it shows the "cut and dry" mentality that is taken by the legal system when confronted with medical negligence cases.  If you go into surgery for one thing and come out in a worse condition then you entered then there is a presumption that it is the fault of those medical professionals who acted upon your person.  This, however, is only a presumption and it is still the duty of the plaintiff to prove every element of the case.

Vicarious Liability

Negligence

Negligence

WHAT DOES IT MEAN TO BE NEGLIGENT?
 
 
WHAT IS NEGLIGENCE?
 
 
NEGLIGENCE is a cause of action that a plaintiff may assert in a civil tort case against a defendant.  In order to meet a prima facie (on its face) case for NEGLIGENCE a plaintiff must prove four (4) elements: 
 
 
That there was a DUTY on the part of the defendant to conform to a certain standard of conduct.
 
 
That that defendant BREACHED THAT DUTY
 
 
The breach of duty was, not only the actual cause, but the proximate cause of injury
 
 
There are damages
 
 
WHAT IS THE STANDARD OF CARE
 
 
The standard of care that is used in NEGLIGENCE cases is that of the REASONABLY PRUDENT PERSON.  It is an objective view.  In other words the question is NOT whether the defendant thought he/she was acting reasonably BUT whether an ordinary person on the street would have deemed that reasonable.  
 
 
The standard of care, for NEGLIGENCE actions, IS NOT concerned with mental deficiencies.  According to tort law incompetence is not an excuse.  An individual with an IQ well below average is still held to the standard of the reasonably prudent person for a normal IQ.  Physical deficiencies take on a different standard though.  Physical attributes and deficiencies are measured by the reasonably prudent person with that condition.  Someone who is blind will be measured against the reasonably prudent blind person.  A person who is a master rifleman will be measured against the reasonably prudent person with the same skills, eyesight, etc. as a master rifleman.
 
 
There are other standards of care that are frequently used in NEGLIGENCE actions.  These include children, common carriers (innkeepers, airlines, etc.), and professionals.  
 
 
WHAT IS THE DIFFERENCE BETWEEN ACTUAL AND PROXIMATE CAUSE?
 
 
In a NEGLIGENCE action the plaintiff should find that finding (1) duty; (2) breach of duty; and (3) damages are straightforward.  The question that remains is: what is the difference between actual and proximate cause?
 
 
In a NEGLIGENCE action the plaintiff must prove that the defendant was BOTH the actual and proximate cause of the injury.  The definition of ACTUAL CAUSE is that "if not for the action by defendant the injury would not have occurred." It is easier to think of this as the "But for" test.  "But for Dana leaving her skateboard on the steps Peter would not have slipped on it and broken his leg." Here the leaving of the skateboard on the steps was the actual cause of Peter's injury.  
 
 
Not only does the NEGLIGENT actions by the defendant need to meet the "but for" test for actual cause but it must also be the PROXIMATE CAUSE, also known as legal causation.  In order for the proximate cause prong to be met the defendant's actions must have been reasonably foreseeable.  Courts are reluctant to find a defendant guilty of NEGLIGENCE when his actions, even though they were the actual cause, were interrupted by superseding, unforeseeable actions.  For example, if Dana did not properly inspect her vehicle on a timely basis and failed to notice the brakes were worn she would be negligent if she hit another vehicle because of the faulty brakes.  However, if a bolt of lightning caused Dana's car to accelerate into another vehicle she would not be found negligent.  This is because, even though, she was negligent in maintaining the brakes the lightning bolt was an unforeseeable intervening cause.
 
 
If a Plaintiff has met the four (4) elements of a prima facie case: (1) duty; (2) breach of duty; (3) proximate and actual causation; & (4) damages then a suit in NEGLIGENCE may be successful.
 
 

Negligence

Vicarious Liability

Negligence case law