Flashcards and Answers – Business Law Chapter 9

Behavior that creates an unreasonable risk of harm to others, involves the failure to exercise reasonable care to protect another's person or property.

1. Duty 2. Breach of duty 3. Causation 4. Damages

The first thing a plaintiff must establish to win a negligence case. In most cases, courts use the reasonable person standard (how society would expect an individual to act in a given situation) to determine the defendant's duty of care. In most situations, the law holds that individuals have no duty to rescue strangers in perilous situations. Employers- have a duty to protect employees from dangerous situations. Landowners- have a duty of care to protect individuals on their property. Businesses- have a duty of care to customers who enter business property and are obligated to protect their customers from foreseeable risks about which the owner knew or reasonably should have known.

The second thing a plaintiff must establish to win a negligence case. Once the plaintiff has established that the defendant owes her a duty of care, they must go on to prove that the defendant's conduct violated that duty.

The third thing a plaintiff must establish to win a negligence case. The plaintiff must prove 2 elements to be able to recover damages: 1. Actual Cause 2. Proximate Cause

Aka cause in fact The determination that the defendant's breach of duty resulted directly in the plaintiff's injury. *Also known as but-for causation because the plaintiff argues that the damages they suffered would not have occurred but for the actions of the defendant. (Ask if the plaintiff would have been injured if the defendant had fulfilled his/her duty)

Aka legal cause Refers to the extent to which as a matter of policy, a defendant may be held liable for the consequences of his actions. In most states, it is determined by foreseeability (when both the plaintiff and the plaintiff's damages were reasonably foreseeable at the time the defendant breached his duty to the plaintiff). If the defendant could not reasonably foresee the damages that the plaintiff suffered as a result of his action, the plaintiff's negligence claim will not be sustained.

The fourth thing a plaintiff must prove to win a negligence case. The plaintiff must have sustained compensable injury as a result of the defendant's actions. *A person CANNOT bring an action in negligence seeking nominal damages, they MUST seek COMPENSATORY damages (wanting to be reimbursed for their loss)

Since the plaintiff has the burden of proving all 4 elements of a negligence case, direct evidence of negligence by the defendant may not always be available (there may be no evidence or witnesses to the negligent conduct). Therefore, 2 doctrines have been adopted by courts to help plaintiffs establish their claims: 1. Res ipsa loquitur 2. Negligence per se

One plaintiff doctrine. Literally means "the thing speaks for itself". Plaintiffs use this doctrine to allow the judge or jury to infer that more likely than not, the defendant's negligence was the cause of the plaintiff's harm, even though there is no direct evidence of the defendant's lack of due care. Plaintiff must demonstrate: 1. The event was a kind that ordinarily does not occur in the absence of negligence. 2. Other responsible causes, including the conduct of 3rd parties and the plaintiff, have been sufficiently eliminated. 3. The indicated negligence is within the scope of the defendant's duty to the plaintiff.

A plaintiff doctrine. Aka "negligence in or of itself". Applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs. If the defendant's violation causes the plaintiff to suffer from the type of harm that the statute intends to prevent, the violation is deemed negligence per se. Ex. If Ohio passes a statute prohibiting sale of alcohol to minors and a minor is charged with killing 2 pedestrians while driving under the influence, the liquor store's violation of the statute establishes negligence per se.

2 types: 1. Danger Invites Rescue Doctrine= meant to protect bystanders who are injured while attempting to rescue survivors of dangerous/traumatic events. When the plaintiff is injured rescuing the defendant and is able to collect damages. 2. Dram Shop Acts= Allows bartenders and bar owners to be held liable for injuries caused by individuals who become intoxicated at any commercial establishment where alcohol is sold.

1. Contributory Negligence 2. Comparative Negligence 3. Assumption of the Risk 4. Good Samaritan Statutes 5. Superseding Clause

A defense to negligence. Applies to cases in which the defendant and the plaintiff were both negligent. The defendant must prove: 1. The plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm. 2. The plaintiff's failure was contributing cause to the plaintiff's injury. Ex. If a plaintiff involved in a car accident failed to wear her seat belt, that failure constitutes contributory negligence because her action contributed to her injuries. *If defendant successfully proves contributory negligence, plaintiff does not get ANY damages. **Some states deemed that this seems unfair, so they adopted the last clear-chance doctrine.

Allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff.

A defense to negligence. This defense was created due to the great deal of harm to a plaintiff the defendant can cause if they cannot recover any damages due to contributory negligence. 2 types: 1. Pure comparative negligence 2. Modified comparative negligence

A type of comparative negligence. When the court determines the percentage of fault of the defendant. The defendant is then liable for that percentage of the plaintiff's damages.

A type of comparative negligence. How courts calculate damages, the defendant must be more than 50% at fault for plaintiff to be able to recover.

A defense to negligence. The defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused-->aka that the plaintiff willingly assumed as a risk the harm she/he suffered. 2 types: 1. Express assumption of risk= When the plaintiff expressly agrees to assume the risk posed by the defendant's behavior 2. Implied assumption of risk= When the plaintiff implicitly assumed a known risk

A defense to negligence. People in peril who receive voluntary aid from others cannot hold those offering aid liable for negligence.

A defense to negligence. An unforeseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered. Allow the defendant to avoid liability because they are evidence that the defendant's breach of duty was not the proximate cause of the plaintiff's injuries. Disprove the causation element by establishing that some unforeseeable event that proves that the defendant's actions were not the PROXIMATE cause of the plaintiff's injuries.

The law holds an individual liable without fault when the activity in which she engages satisfies 3 conditions: 1. It involves risk of serious harm to people or property. 2. It is so inherently dangerous that it cannot ever be safely undertaken. 3. It is not usually performed in the immediate community. Ex. Dynamite blasting in a populated area, keeping animals that have not been domesticated, etc.