Negligence and Strict Liability Actions

Karl Giles PA165-01 Unit 9

NEGLIGENCE AND STRICT LIABILITY ACTIONS

Analysis: Elements and Defenses

Karl Giles

PA165-01 – Unit 9

Professor Sarah Burnette

Kaplan University February 16, 2011

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NEGLIGENCE AND STRICT LIABILITY ACTIONS

Analysis - Elements and Defenses:

Introduction

The area of tort law is broadly inclusive with intentional torts ranging from physical torts such as assault and battery, to non-physical torts such as defamation. Intentional tort cases are generally cut and dry, in that the facts, parties and torts committed are plainly laid out. On the other hand, negligence can be much more difficult to adjudicate, in that the defendants, facts and actual torts committed are less clear, making investigation and discovery more arduous. HN1As described in Kaplan University PA165-01 course material (2011) § 2.1,

“….Negligence is not a mathematical equation. Instead, negligence resembles probability theory, in which specific conduct is more likely than not to be considered negligent under a particular set of circumstances.” p. 18 para. 1. Therefore, in torts the burden of proof is much heavier on the plaintiff than in strict or absolute liability cases, because the parties and facts surrounding the issue are not clearly spelled out. Tort law, in its obscure nature, is as debatable as it is broad in scope. This paper, however will limit its focus to comparing and contrasting the elements and defenses of negligent actions to those of strict liability actions. First, we will examine the elements necessary in bringing both negligence claims and strict liability claims.

In order to bring a negligence claim, the following elements must be present: NEGLIGENCE / STRICT LIABILITY – (Elements) – As noted in Kaplan

University PA165-01, § 2.4 (2011), HN2 (1a). Duty of Care - “….In negligence, the duty of reasonable care is the responsibility to act reasonably so as to avoid injuring others….” p 20 para

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In order to claim negligence, the plaintiff must prove that (1) the defendant did first owe him or her some measure of duty of care, (2) whether or not that duty was breached.

Once these two things have been established, both parties examine (3) what defenses are available and (4) what remedies would be appropriate and reasonably anticipated. Kaplan

(2011), explains how strict liability on the other hand, does not recognize duty (or fault) as relevant, therefore, HN3“The tortfeasor could have used every possible degree of care to protect against injuring the victim…this would not prevent liability…” p 262 para 4.

(1a). Breach of the duty by the tortfeasor - In order to claim negligence, the duty that was owed you was neglected, thereby causing a breach in duty. However, strict liability does not recognize duty as a factor in accountability, therefore breach is also irrelevant.

(2a). Causation of injury to the victim - Kaplan University, PA165-01 Unit 9 course material notes that causation is a necessary element to establish negligence, and only valid if both “cause-in-fact” and “proximate cause” are present. “Cause-in-fact” injuries can often be difficult to determine, especially when there are multiple parties to a claim. In an attempt to simplify and clarify, Kinsey, E.E., (2011) explains how the courts have historically relied on the “but for” rule of causation that states, H N4 “…. “But for” the defendant’s conduct, the event would not have occurred.” p1 para 9. Although this definition may appear narrow and limited in applicability, it is a simple and clear bottom line in a dispute. Other facts must be examined in the interest of fairness, however, the “but for” rule is what the court uses to begin the trial process. Contrary to negligence, the element of duty is not a factor in strict liability, therefore there is no need to establish causation.

(3a). Damages to the victim - In negligence cases, awards to the victor can come in the form of § 2.7 Damages (Court ordered money awards to the victim), Compensatory

Damages

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(Damages awarded for loss suffered), Punitive Damages (Money awards to the victim meant to punish the tortfeasor), and seldom Nominal Damages (Small token monetary awards meant as a symbolic gesture to the tortfeasor).

DEFENSES TO NEGLIGENCE AND STRICT LIABILITY

NEGLIGENCE STRICT

LIABILITY

Contributory negligence Assumption of risk

Comparative negligence Contributory and comparative negligence

Assumption of risk Consent

Statute of limitations Self-defense and defense of others

Provocation

As we have seen, strict liability in its conceptual rigidity, is only applicable under

(ultrahazardous) work conditions. This bottom line rule is necessary to hold manufacturers accountable and consumers protected.

References

1. HN1 thru HN4, Retrieved February 16, 2011 from Kaplan University PA165-01 course material.

( http://kucourses.com/ec/crs/default.learn )