MGMT 311 Chapter 6 Tort Law (Student Copy) PDF

BUSINESS LAW TEXT AND CASES CHAPTER 6: TORT LAW © 2018 C...

BUSINESS LAW TEXT AND CASES CHAPTER 6: TORT LAW © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  The Basis of Torts Law  A tort cause of action refers to a legal claim, but not a contract claim, brought by a plaintiff against a defendant alleging that the defendant's wrongful conduct has caused harm or injury to the plaintiff, for which the plaintiff seeks compensation or other relief.  "Tort" is a legal term that encompasses a wide range of civil wrongs that result in harm or injury to another person or their property. 2 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  The Basis of Torts Law Elements of Each Tort:  Every tort cause of action has specific elements that the plaintiff must prove to establish liability.  These elements vary depending on the type of tort alleged. Burden of Proof:  The burden is on the plaintiff to demonstrate, by a preponderance of the evidence, that all required elements of the tort have been met.  If the plaintiff successfully proves all elements, the defendant may be held liable for the harm caused. 3 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  The Basis of Torts Law Importance of Damages:  In addition to proving the elements of the tort, the plaintiff must demonstrate the damages suffered as a direct result of the defendant’s actions.  Damages may include physical injuries, emotional distress, property damage, or financial losses. 4 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  The Basis of Torts Law  Damages Available in Tort Actions:  Compensatory damages reimburse a plaintiff for his actual losses.  Special damages refer to quantifiable losses, such as medical expenses, lost wages, and benefits.  General damages may also be awarded for nonmonetary aspects, such as pain, suffering, and reputation.  Punitive damages may be awarded to punish the wrongdoer and to deter others from similar conduct in the future. 5 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.   Special  General Damages Damages Damages  Medical Bills  Physical and/or  Lost Wages mental pain and suffering  Damage to Property  Loss of  Repair Costs consortium  Disfigurement  Loss of reputation 6 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.   Intentional  Unintentional Classificatio Torts Torts n of Torts  Includes torts  Also includes torts against against both a both a person person and/or and/or a tort a tort against against property. property.  Unintentional  Intentional torts are fault torts are fault without intent plus intent. to harm. 7 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  The Basis of Torts Law  Defenses:  The defendant may be able to raise one or more legally recognized defenses.  A successful defense releases the defendant from partial or full liability for the tortious act.  Available defenses vary depending on the tort involved.  Think of a defense as a “trump” card. 8 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts For an intentional tort to occur, the tortfeasor (the person committing the tort) must possess the necessary intent. Intent can be established in different ways: Direct Intent: The tortfeasor intended the specific consequences of their actions. He acted with the purpose of causing harm or producing a certain outcome. Substantial Certainty: Even if the tortfeasor did not desire the specific outcome, he knew with substantial certainty that certain consequences would result from his actions. 9 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Transferred Intent is the situation in which the tortfeasor intends to harm one person, but unintentionally harms another person instead of or as well.  Example? 10 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Assault: Any intentional and unexcused threat of immediate harmful or offensive contact—whether words or acts—that create a reasonably believable threat. No physical contact is necessary for an assault to occur. 11 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Assault: Any intentional and unexcused threat of immediate harmful or offensive contact—whether words or acts—that create a reasonably believable threat. No physical contact is necessary for an assault to occur. 12 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Assault: Any intentional and unexcused threat of immediate harmful or offensive contact—whether words or acts—that create a reasonably believable threat. No physical contact is necessary for an assault to occur. 13 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Assault: Any intentional and unexcused threat of immediate harmful or offensive contact—whether words or acts—that create a reasonably believable threat. No physical contact is necessary for an assault to occur. 14 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Assault: Any intentional and unexcused threat of immediate harmful or offensive contact—whether words or acts—that create a reasonably believable threat. No physical contact is necessary for an assault to occur. 15 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Assault: Any intentional and unexcused threat of immediate harmful or offensive contact—whether words or acts—that create a reasonably believable threat. No physical contact is necessary for an assault to occur. 16 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Battery is the completion of an assault: It is the unexcused and harmful or offensive physical contact intentionally performed. The contact can be made by the defendant or by some force set in motion by the defendant. 17 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Battery :  The contact can be either harmful or offensive.  Whether the contact is offensive will be determined by both a subjective standard and an objective standard.  Is it in fact offensive to the plaintiff (subjective) and would it be offensive to a reasonable person (objective). 18 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Some Defenses to Assault and Battery:  Consent: If the plaintiff consented to the act that led to the assault, this can be a valid defense.  Self-Defense: If the defendant can prove that they were acting in self- defense and used reasonable force to protect themselves from imminent harm, this can be a defense to a civil assault claim. © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 19  Intentional Torts  False Imprisonment is the intentional confinement of another person or restraint of another person’s activities without justification.  The confinement may occur by physical barriers, physical restraint, or threats of physical force.  Moral pressure is generally not enough. 20 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Examples of False Imprisonment:  An individual blocks all exits of a room, preventing another person from leaving during an argument.  Even if no physical force is used, the act of preventing the person from leaving can constitute false imprisonment.  A police officer arrests and detains a person without probable cause or a warrant.  If the arrest is made without legal justification, it can be classified as false imprisonment 21 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Suppose a shopkeeper stops a person whom the shopkeeper believes has shoplifted from leaving store.  Is this false imprisonment? 22 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Most states allow a shopkeeper to detain a suspected shoplifter from leaving the store.  These are called “Privilege To Detain” laws.  In other words, without the state law, the shopkeeper detaining the suspected shoplifter might be liable for false imprisonment.  It is a defense! 23 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  In most states, a shopkeeper may avoid liability for false imprisonment if: 1. He has a reasonable suspicion that shoplifting actually occurred; 2. He uses only reasonable force to detain the shoplifter; and 3. He detains the suspected shoplifter only for a reasonable time (generally, until the police arrive). 24 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Infliction of Emotional Distress: An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. The act must be extreme and so outrageous that it exceeds the bounds of decency accepted by society in order to be actionable. 25 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Elements of Infliction of Emotional Distress Cause of Action: 1. Defendant must have acted intentionally; 2. Defendant’s conduct must be extreme and outrageous; 3. The conduct must be the cause of the emotional distress; and 4. The emotional distress must be severe. 26 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Defamation: Defamation involves wrongfully hurting another person’s good reputation. The law imposes a duty to refrain from making false defamatory statements of fact about others. Orally breaching this duty is slander. Breaching it in print or media (including the Internet) is called libel. 27 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  To establish defamation, all of the following elements must be proved: 1. The defendant made a false statement of fact (not opinion); 2. The statement was understood as being about the plaintiff and tended to harm the plaintiff’s reputation; 3. The statement was published to at least one person other than the plaintiff; and 4. If the plaintiff is a public figure, she or he must also prove actual malice. 28 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Defamation: The published statement must be of fact.  Statements of opinions are protected speech under the First Amendment and not actionable. 29 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Publication Requirement:  The false statement must hold an individual up to hatred, contempt, or ridicule in the community and be “publicized” (communicated) to a third party. 30 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Damages for Libel: General damages are presumed, and the plaintiff does not have to prove actual injury.  These damages may include compensation for disgrace, dishonor, humiliation, injury to reputation, and emotional distress. 31 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Damages for Slander: Unlike libel, the plaintiff must prove special damages (actual economic loss) to establish liability.  If the plaintiff cannot prove that the slanderous statement caused him to suffer actual economic or monetary losses, then plaintiff cannot go forward and recover general damages. 32 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Exception: a plaintiff who is the victim of slander per se does not have to prove special damages (actual economic loss) to establish liability.  Four types of slander per se: 1. Statement that plaintiff has a loathsome disease (usually a sexually-transmitted disease) 2. Statement that plaintiff committed business improprieties. 3. Statement that plaintiff committed or has been imprisoned for a serious crime. 4. Statement that plaintiff has been unchaste or has engaged in serious sexual misconduct. 33 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Defenses to Defamation:  Truth is generally an absolute defense for defamation.  Privileged (or Immune) Speech.  Absolute Privilege.  Qualified Privilege. 34 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  A business can also be defamed.  Defamation can arise when a false statement of fact is made about a person’s product, business or legal ownership rights to property.  Defamatory statements that disparage a company's goods or services are called trade libel.  Trade libel protects property rights, not reputations. 35 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Invasion of Privacy: The common law recognizes four acts that qualify as improperly infringing upon another’s right to privacy. 1. Intrusion on individual’s affairs or seclusion; 2. Publication of information that places a person in false light; 3. Public disclosure of private facts; and 4. Appropriation: Use of another’s name, likeness, or other identifying characteristic for commercial purposes without the owner’s consent. 36 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Intrusion Upon Seclusion  This type of invasion of privacy occurs when someone intentionally intrudes upon the solitude or seclusion of another, in a manner that would be highly offensive to a reasonable person.  Hidden Cameras: Installing hidden cameras in someone's home or private space without their consent to capture private moments.  Eavesdropping: Listening to private conversations through wiretapping or using other surveillance methods without the person's knowledge. 37 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  False light invasion of privacy occurs when someone publishes information about another person that is misleading and portrays them in a false light, which would be highly offensive to a reasonable person. For example, publishing a photograph of a person in an article about terrorism that implies the person is a terrorist. 38 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Appropriation of Name or Likeness: This type of invasion of privacy involves using another person's name, likeness, or identity for commercial gain without their permission. Unauthorized Endorsements: Using a celebrity’s image or name in advertising without their consent to promote a product. Impersonation: Creating a fake social media account using © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 39  Intentional Torts Fraudulent Misrepresentation (Fraud): intentionally making misrepresentations of fact (“intentional deceit”) usually for personal gain. Fraud is more than just puffery (“seller’s talk”). 40 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Elements of Fraudulent Misrepresentation: Misrepresentation of material fact; Intent to induce another to rely on the misrepresentation; Justifiable reliance by innocent party; Damages suffered as a result of reliance; A causal connection between misrepresentation and the injury suffered. 41 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Abusive or Frivolous Litigation: Torts related to abusive or frivolous litigation include: Malicious prosecution. Abuse of process. While the two claims may appear similar, they have some essential differences. 42 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts  Malicious prosecution occurs when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she doesn’t have a case.  The plaintiff must show that the original case was without legal grounds and was done with malice.  Plaintiff must have obtained a favorable result in the previous case © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 43  Intentional Torts  Abuse of process occurs when a defendant starts a legal process with the intention to obtain results for which the process was not designed.  Example: filing a lien on someone else’s property when there is not right to do so. 44 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Wrongful Interference with a Contractual Relationship occurs when: Defendant knows about contract between two or more parties; Defendant intentionally induces one of the parties to breach the contract; and Defendant benefits from such breach. 45 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Wrongful Interference with a Business Relationship is different and occurs when: There is an established business relationship between two or more parties; The defendant uses predatory methods to cause that relationship to end; and The plaintiff (a party to the original business relationship) suffers damages. 46 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property Trespass to Land occurs when a person, without permission: Physically enters onto, above, or below the surface of another’s land; or Causes anything to enter onto the land; or Remains—or permits anything to remain—on the land. A trespasser is generally liable for any damage his trespass caused to the property. 47 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property A trespasser generally cannot hold the owner of the property liable for injuries the trespasser sustained while unlawfully on the premises. This is not an absolute rule. Most states require a landowner to exercise a reasonable duty of care rule even for trespassers that varies depending on the status of the trespasser. Property owners may be liable for objects that attract children under the attractive nuisance doctrine. 48 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property Suppose you attend a football game at Kyle Field. You have a ticket to the game. Can you ever be deemed a trespasser? 49 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property A licensee is a person who is granted permission by the property owner to enter and use the property for specific purposes. A licensee can become a trespasser if they stay on the property after their permission has been revoked (told to leave) or the duration of their license has expired (the game is over). A licensee can also be liable for trespass if they enter areas of the property that are clearly marked as restricted or off-limits. 50 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property Trespass to Personal Property is the intentional interference with another’s use or enjoyment of personal property without consent or privilege. This may include: Conversion. Failure to return property. 51 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property  What about receipt of stolen property?  Abel steals Ben’s Aggie football tickets.  Abel sells the tickets to Cathy, telling her that the tickets are his.  Cathy is liable for conversion.  Look at definition: she is in wrongful possession of Ben’s property without his permission.  Probably not in violation of criminal law. 52 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Intentional Torts Against Property  What about the conversion of electronic/digital records:  I develop a marketing spreadsheet.  It contains the names and prior purchases of all my customers  You hack into my computer and “take” the spreadsheet.  I still have the original.  Would this be considered conversion? 53 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence  Imagine you are shopping in a grocery store.  As you walk down one of the aisles, you suddenly slip on a spilled liquid and fall, injuring your arm.  The store employees did not intentionally cause this accident, but the situation could have been prevented.  This is not an intentional tort, but you may still be able to recover damages for your injury under a negligence cause of action. 54 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence  Unintentional Tort: A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act (fault with no intent).  Negligence: Failure to live up to a required duty of care that a reasonable person would exercise in similar circumstances.  Intent is not required, only the creation of risk of the consequences experienced by the plaintiff. 55 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence  The plaintiff must prove each of the following elements:  Duty: Defendant owed plaintiff a duty of care;  Breach: Defendant breached that duty;  Causation: Defendant’s breach caused the injury; and  Damages: Plaintiff suffered a legal injury. 56 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  1 and 2 st nd Elements of Negligence The courts consider the following factors when determining whether a duty of care was breached: The nature of the act (outrageous or commonplace). The manner in which the act was performed. The nature of the injury. 57 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  1 and 2 st nd Elements of Negligence Reasonable Person Standard: In determining whether a duty of care has been breached, courts ask how a “reasonable person” would have acted in the same circumstances. Degree of care varies and depends on the defendant’s occupation or profession, her or his relationship with the plaintiff, and other factors. 58 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  1 and 2 st nd Elements of Negligence We have seen that a landowner may owe a duty of care to those who come on its premises, even to a trespasser. What duty of care does a business owe to persons it invites unto its premises? A business must warn invitees onto its property of any potential harm on its premises. 59 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  1 and 2 st nd Elements of Negligence Other examples of a duty of care: An automobile driver must exercise reasonable care, which includes obeying traffic signals, driving at safe speeds, and staying alert to prevent accidents. Medical professionals owe a duty of care to their patients to provide competent and standard medical treatment, including diagnosing conditions correctly and providing appropriate treatment​. 60 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  1 and 2 st nd Elements of Negligence At least in theory, risks considered to be obvious risks do not require a warning. Is an establishment such as McDonald’s required to warn the public that the coffee it sells is hot? 61 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  3rd Element of Negligence: Causation Causation: Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the plaintiff’s injuries. Courts ask two questions: Is there a causation in fact? Was the act the proximate (or legal) cause of the injury? 62 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  3rd Element of Negligence: Causation Causation in Fact: Did the injury occur because of the defendant’s act, or would the injury have occurred anyway? Usually determined by the “but for” test. Proximate Cause: When the causal connection between the act and injury is strong enough to impose liability. 63 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  3rd Element of Negligence: Causation Foreseeability: Defendant owes duty to protect plaintiff from foreseeable risks that defendant knew or should have known about. A foreseeable risk is one in which the reasonable person would anticipate and guard against it. Ms. Palsgraf. 64 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  3rd Element of Negligence: Causation  The issue of foreseeability should not be confused with egg-shell skull theory.  If an injury is foreseeable but one could not predict the extent of injury, the law says you take your plaintiffs as you find them. 65 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  4 Element of Negligence: Injury th The Injury Requirement and Damages: To recover, the plaintiff must show a legally recognizable injury. Compensatory damages are designed to reimburse plaintiff for actual losses. Punitive damages for gross negligence are designed to punish the tortfeasor and deter others from wrongdoing. 66 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence Statutes Negligence per se is a legal doctrine that establishes an act as negligent because it violates a statute or regulation. Under this doctrine, the act of violating the statute is considered inherently negligent, without the need for further proof of the defendant's breach of duty of care. This simplifies the plaintiff's case. 67 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence Statutes Examples of Negligence Per Se: A driver runs a red light, violating traffic laws, and collides with another vehicle, causing injury to the other driver. A landlord fails to install smoke detectors in an apartment building, in violation of local fire safety regulations. A fire breaks out, and a tenant is injured because there was no warning. 68 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence Statutes Dram shop laws are statutes that impose liability on establishments that sell alcoholic beverages to intoxicated individuals who subsequently cause harm due to intoxication. These laws aim to encourage responsible alcohol service by these establishments, holding them accountable for the actions of their patrons if they serve alcohol irresponsibly. 69 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence Statutes An adult leisurely sits on a bench on a beautiful summer day. He notices a child, possibly drowning in a nearby lake. The adult is not related to the child and the adult is an expert swimmer. Any legal duty to save the child? 70 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Negligence Statutes All states have enacted some version of a “Good Samaritan” statute. This is a law designed to protect individuals who assist others in need from liability if unintended consequences result from their aid. The primary goal of this statute is to encourage people to offer help during emergencies without fear of being sued if their assistance inadvertently causes harm. 71 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Defenses to Negligence Claims Assumption of the risk is a legal doctrine used as a defense in negligence cases. It occurs when a plaintiff voluntarily and knowingly assumes the inherent risks associated with a particular activity, thus absolving the defendant of some or all liability. This defense is based on the principle that a person who knowingly exposes themselves to a danger cannot later claim to be injured by that danger. 72 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Defenses to Negligence Claims What if a plaintiff sues a defendant for negligence. The defendant contends that the plaintiff was either solely or partially negligent. What happens then? 73 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Defenses to Negligence Claims  Under the doctrine of strict contributory negligence, if a plaintiff was found to be even slightly negligent and contributed to his own injury, he was barred from recovering any damages from the defendant.  Example: If a pedestrian is jaywalking and is hit by a driver who is speeding, the pedestrian may be found to be partially at fault for the accident.  In a strict contributory negligence jurisdiction, the pedestrian would not be able to recover any damages from the driver, even if the driver's negligence was greater. 74 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Defenses to Negligence Claims  Under pure comparative negligence, a plaintiff can recover damages even if he is found to be up to 99% at fault for his own injury.  However, the damages awarded are reduced by the plaintiff’s percentage of fault.  Example: If a pedestrian is found to be 70% at fault for jaywalking and the driver is found to be 30% at fault for speeding, and the pedestrian's damages are $10,000, the pedestrian can still recover $3,000 (30% of $10,000) from the driver. 75 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Defenses to Negligence Claims Under modified comparative negligence, a plaintiff can recover damages only if he is found to be less than 50% at fault. If the plaintiff is found to be equally or more at fault than the defendant, then he is barred from recovering any damages. If the plaintiff is found to be less at fault than the defendant, the damages awarded are reduced by the plaintiff’s percentage of fault. 76 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.  Defenses to Negligence Claims If the pedestrian in our previous example is found to be 50% at fault for jaywalking and the driver is 50% at fault for speeding, the pedestrian cannot recover any damages. If the pedestrian is found to be 49% at fault, he can recover 51% of his damages. 77 © 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.