Week 4 assign Leg Env

Negligence, Strict Liability, and Product Liability 8

As Chapter 7 discussed, there is tort liability for certain types of intentional torts, both to peo-ple and to property. All of those torts were deemed intentional because they included three elements: an act of conscious volition; intent, which is defined as understanding the conse- quences of one’s actions; and damages. In this chapter, we will explore liability even when there is no “intent” involved whatsoever, but rather, the torts are deemed unintentional. These are the torts of negligence, one of the most common types of torts business managers experience and one of the most expensive. In some cases, liability is imposed even if the defendant was not negligent but was engaged in ultra-hazardous activities. This is called absolute liability. An additional area of law is referred to as product liability, which refers to a lawsuit based on three combined causes of action: warranty, negligence, and strict liability. Under this theory, a plaintiff sues the manufacturers of the product for injuries sustained when the product malfunctions.

8.1 The Four Elements of Negligence

In business, negligence is costly on many levels. If a product manufacturer causes death or injury of those who use the company’s products, the resultant legal action will be expensive and time consuming. Further, the publicity from such an action will likely result in lost profits as consumers refuse or are afraid to buy the product. If the company is publicly traded, the stock values will soon fall as a result. All these factors combine to cause catastrophic and possibly irretrievable damage to a busi- ness. For an example, look no further than the spate of asbestos litigation that has been brought for the past several decades and has resulted in many large manufac- turers going out of business.

Every member of society is charged with a duty to act with reasonable care at all times in order to avoid harming others through carelessness. The law imposes a duty on each of us to take the precautions that a reasonably prudent person would take in order to prevent inflicting fore- seeable injury on others as we go about our daily routines. If a person falls short of this standard of care and causes fore- seeable injury to others, liability for the

Negligence that results in death or injury to those who use a company’s products can be expensive, time consuming, and damaging to a company’s image.

Steve Helber/Associated Press

sea80373_08_c08_121-134.indd 1 10/4/12 3:23 PM

122

Section 8.1 The Four Elements of Negligence CHAPTER 8

tort of negligence may arise. A defendant in an action for negligence is not charged with willful conduct but rather with failing to observe reasonable care under the circumstances. The reasonable person standard is an objective one; it requires each person in society to act in keeping with the standard of care that a reasonably prudent person would apply under the same circumstances. The reasonable person standard uses as its model a fic- tional member of society that represents a citizen of average intelligence, average com- mon sense, and average skills.

In order to successfully bring a suit for negligence, the plaintiff must establish four elements:

1. The defendant had a duty of care; 2. The defendant breached that duty of care owed him or her; 3. The breach directly caused the plaintiff’s injuries; and 4. The plaintiff did in fact suffer physical or mental harm or injury.

Duty of Care

The first requirement that the plaintiff must prove to the jury by a preponderance of the evidence is that the defendant owed a duty to the plaintiff. A duty of care (another name for the reasonable person standard) is the standard of behavior expected of a person in a particular situation. Because circumstances are always changing, the standard of care expected of one is always changing.

Consider driving a car on a highway that has a posted speed limit of 65 miles per hour. If the day is clear, the pavement dry, and the traffic light, then a reasonable person would drive the speed limit and be considered prudent for doing so. If, on the other hand, that same person were driving on the same road but under conditions that included fog, ice, and drizzling sleet, a reasonable person would slow down considerably. One could not argue that because the speed limit is 65 miles per hour, the person was not negligent. After all, the circumstances had changed, and reasonable people react to such a change. A jury would decide exactly how a reasonable person should have acted under the circum- stances (should they have been driving 15 miles per hour, or perhaps pulled off the road?) by listening to the testimony of witnesses in the trial. Such witnesses could include other drivers who were on the same road that day, who could testify about the conditions they saw and how they reacted, as well as “experts” who could discuss how much vision driv- ers have in fog and details such as the average reaction times of drivers. All this informa- tion would then be synthesized by the jurors as they considered whether the defendant acted as a reasonable person under the circumstances.

Sometimes the duty of care is defined by statute rather than the reasonable person stan- dard, in which case it is called statutory duty of care. Consider, for example, that a local ordinance mandates that all property owners must remove ice and snow from their side- walks within 24 hours of a snowfall. When a standard of care is set by law and a pedes- trian slips and falls on the unshoveled sidewalk, the defendant is presumed negligent because he or she violated the statute. As a result of this presumption, the burden of proof shifts to the defendant homeowner or business owner, who now has the burden of

sea80373_08_c08_121-134.indd 2 10/4/12 3:23 PM

123

Section 8.1 The Four Elements of Negligence CHAPTER 8

proving lack of negligence. Recall that in civil cases, the plaintiff normally has the burden of proving to the jury liability by the defendant. Here, however, the burden has shifted from the plaintiff to the defendant, which makes it much more difficult for defendants to win in court because they must now prove they were not negligent.

Once the duty of care has been established, the second element the plaintiff must prove to the jury is that the defendant fell below the standard of care. For example, if a reason- able person would pay attention when driving a car, then texting while driving would fall below the standard of a reasonable person. In short, falling below the duty of care is not exercising the care that a reasonably prudent person should have exercised under the circumstances.

Foreseeability and Proximate Cause

The third and fourth elements of a negligence lawsuit concern whether it was foreseeable that the defendant’s actions would cause the plaintiff to suffer harm or injury and whether the plaintiff did in fact suffer mental or physical harm or injury. If you light a match and throw it into a gas tank, it is foreseeable that the gas tank will explode. This is also called direct causation: the breach caused the injuries (explosion). Direct causation and foresee- ability are terms used interchangeably.

In order for the plaintiffs to win a negligence lawsuit, it is necessary that they prove direct causation to prove negligence. Sometimes this is an easy task, and other times, impossible. The simplest type of example would be as follows: Suppose that a driver is careening ahead at 100 miles per hour, loses control of his car, and crashes into a crowd of people. A jury could find that a reasonable person would foresee that the breach (driving 100 mph) caused the injuries, and thus, it is foreseeable that if you drive 100 miles per hour, you are going to lose control of your car. Thus, we say it was “foreseeable” to the defendant that his or her breach of the duty of care would cause an accident.

Is it foreseeable, however, that someone is going to enter your business and start shooting at customers using real bullets? Suppose that you manage a fast-food restaurant that has never had any criminal or violent incidents occur on its premises. As a result, you do not have any extraordinary security in place, such as plainclothes police officers or security cameras. One day, an armed robber comes into the restaurant, threatens employees, and shoots a customer. The business is then sued by the customer on the basis of negligence. The question will be whether the restaurant had adequate security in place to protect its customers. One factor the court will consider is whether such an incident has occurred before. If no incident has ever occurred, then the business probably has no liability. Why? Because it was not reasonably foreseeable to the store that such an incident would occur.

sea80373_08_c08_121-134.indd 3 10/4/12 3:23 PM

124

Section 8.1 The Four Elements of Negligence CHAPTER 8

On the other hand, if an incident has occurred before, then the duty of the business changes because the definition of foreseeability changes. We call this being on notice, meaning that the business is aware that it has a problem and needs to do something about it. It must take measures owing to its increased standard of care. What exactly does the business need to do? At the very least, it needs to increase security. But to what extent? To deter- mine that, the business would be wise to use consultants to find out the industry stan- dard. The industry standard of care refers to the duty of care established by experts in a particular field. For example, experts in the hotel industry could advise a business owner about ensuring reasonable safety at his or her hotel. It is important to know that busi- nesses do not have a duty to make any place 100% safe. There is always the chance of injury or death, even walking down the street. Events can and do happen that are not fore- seeable. Even so, businesses will be held liable for negligence if a jury believes an event was reasonably foreseeable.

The most famous case defining foreseeability is Palsgraf v. Long Island Railway Co. (248 N.Y. 339, 162 N.E. 99 [N.Y. 1928]). In this case, a passenger was running to jump on the train as it was leaving the station. A conductor leaned out of the moving train to pull the passenger

A Closer Look: McDonald’s Massacre

In July 1984 a shooting spree by a man at a San Diego McDonald’s restaurant left 21 people dead and injured 19. Read the following article about the subsequent litigation by the survivors of the massacre:

http://articles.latimes.com/1986-02-09/local/me-6022_1_ james-oliver-huberty.

Now read the following excerpt from the judge’s opinion in Lopez v. McDonald’s (193 Cal. App. 3d 495, 238 Cal. Rptr. 436):

The special relationship between a business establishment and its customers as a matter of law places an affirmative duty on the proprietor to take reasonable precautions to pro- tect patrons from reasonable anticipative criminal conduct of unknown third parties. . . . Nevertheless, the primary issue here is not whether a fast-food proprietor has a duty to protect plaintiffs from the potential criminal attacks perpetrated by unknown third parties, but rather to determine whether the boundaries of McDonald’s general “duty” encompasses the burden to protect against once-in-a-lifetime massacres. We do this by evaluating this specific event’s reasonable foreseeability, or likelihood of occurrence under the circumstances, with applicable policy considerations in resolving whether lia- bility should be restricted.

You can read the entire opinion here: http://law.justia.com/cases/california/calapp3d/193/495.html.

Questions to Consider

1. Do you agree with the judge’s ruling that such an occasion was unforeseeable, meaning there was no direct causation, and thus this particular McDonald’s had no liability?

2. What evidence did the plaintiffs present to prove that McDonald’s was guilty of negligence? 3. What measures could businesses like McDonald’s take to prevent incidents such as this in the

future?

sea80373_08_c08_121-134.indd 4 10/4/12 3:23 PM

125

Section 8.1 The Four Elements of Negligence CHAPTER 8

aboard, and as he did so, the passenger dropped a package that contained explosives. The explosives ignited, setting off a significant explosion that rattled the train station where Mrs. Palsgraf was standing. The heavy metal scales used to weigh goods that were located on the station platform shook from the explosion and fell on Mrs. Palsgraf’s head, significantly injuring her.

What was the burning issue in this case? It turned on whether it was foreseeable that the conductor’s actions would cause the scales to fall on Mrs. Palsgraf’s head. Of course, it is absolutely unforeseeable that such an improbable chain of events would occur. Therefore, no direct causation could be proven, and the plaintiff lost the case. You may be wonder- ing, why not sue the passenger who was carrying the explosives? Although you might be able to prove that he caused the explosion, suing him would not be practical. After all, remember that a plaintiff ultimately wants to collect the most money possible at the end of the trial; therefore, it is usually prudent to sue the defendant who has the most money—in this case, the railway, and not an individual.

Palsgraf firmly embedded in the law the idea that, if intervening circumstances contribute to the events leading to the injury, then negligence is not the cause of the injury. Palsgraf is an excellent example of a case where intervening events break the causal connection and render the initial act indirect.

Intervening causes include any outside circumstance not caused by the defendant and not within the defendant’s control. In addition, a close link in space and time must be established between the injury and the negligent act, that is, proximate cause. If the person allegedly injured by the defendant’s negligence was too distant in time or space from the defendant’s negligent act so as to be outside of the zone of danger, the injury is not deemed proximately caused by the defendant’s negligence. The following example should illustrate.

Leona, a careless driver, runs a red light at an intersection. Marvin, an even worse driver, sees Leona run the red light three blocks away and panics: He swerves right, steps hard on the accelerator (mistaking it for the brake), and crashes through the display window of a storefront.

Despite the fact that Leona was clearly negligent in her failure to stop at a red light, she is not responsible for Marvin’s accident because her negligence was not its proximate cause. Leon was too far away (three blocks) to be in any danger when Leona crossed the intersec- tion; his accident was the direct cause of his overreaction, not of Leona’s negligence. Had he been only 50 feet away when Leona ran the light, he probably would have been con- sidered within the zone of danger, and his actions might possibly have been attributed to Leona’s negligence. But three city blocks is simply too far a distance for cause and effect, so the accident must be attributed to a separate intervening cause, namely, Marvin’s poor driving skills and tendency to overreact to danger.

The last element of negligence consists of proving that the plaintiff suffered some type of physical harm or property damage. Such a claim can run into the millions of dollars, as juries may award “pain and suffering” damages as part of the award.

sea80373_08_c08_121-134.indd 5 10/4/12 3:23 PM

126

Section 8.2 Defenses to Negligence CHAPTER 8

8.2 Defenses to Negligence

Even when negligence is established, it is still possible for a defendant to avoid tort liability by raising and proving one of three defenses: contributory negligence, comparative negligence, or assumption of risk (discussed below). The effect of these three defenses is to limit or even to completely void a defendant’s tort liability.

All states in the United States follow either the doctrine of comparative negligence or the doctrine of contributory negligence. At last count, 46 states followed the doctrine of com- parative negligence, while five states (including the District of Columbia) are considered pure contributory negligence states.

Contributory Negligence

In a “pure contributory negligence” state, at common law, a person suing another for neg- ligence could recover damages only if he or she were free of any negligence. If the plain- tiff’s negligence contributed even slightly to his or her injuries, the plaintiff’s contributory negligence would bar that person from recovering any damages from the defendant. Fig- ure 8.1 illustrates this concept:

Figure 8.1: Plaintiff sues defendant for $100,000 for negligence

The jury decides that the defendant was 97% negligent but that the plaintiff was 3% negligent.

Since the plaintiff was 3% negligent, in a contributory negligence state, the plaintiff could recover nothing. When you consider that most accidents occur as a result of the negli- gence of both parties, the harshness of this rule becomes clear.

Comparative Negligence

Today, most states have abandoned contributory negligence as a complete defense to neg- ligence actions in favor of comparative negligence. In a comparative negligence state, the plaintiff’s negligence is subtracted from the final award. Referring again to Figure 8.1, the following would be the result if the jury decided that the plaintiff is entitled to $100,000 in damages:

$100,000.00 damages decided by jury

– $3,000.00 Plaintiff’s 3% comparative negligence

= $97,000.00 Plaintiff’s total award

PLAINTIFF 3% Negligent

DEFENDANT 97% Negligent

sea80373_08_c08_121-134.indd 6 10/4/12 3:23 PM

127

Section 8.2 Defenses to Negligence CHAPTER 8

Thus, a comparative negligence defense allows plaintiffs whose negligence contributed to their injuries to sue negligent defendants. However, the plaintiffs’ potential recovery of damages is limited to the percentage of damages not caused by their own negligence. To put it another way, comparative negligence allows a reduction in a plaintiff’s recov- ery proportional to his or her negligence. In the majority of jurisdictions that recognize comparative negligence, the jury is asked to assign a percentage of fault to each party in a negligence action—to decide, in essence, the relative fault of each person in caus- ing the accident. After a jury assigns the proper percentage of culpability to each party, each party is entitled to recover from the other party damages equal to his or her actual damages minus a setoff for the percentage of his or her damages attributable to his or her own negligence.

Comparative negligence jurisdictions today are divided into two camps: those that rec- ognize pure comparative negligence and those that recognize modified comparative negligence. Pure comparative negligence jurisdictions allow plaintiffs to recover no matter what their percentage of negligence, whereas modified comparative negligence jurisdictions allow plaintiffs to recover only if they are less than 50% negligent them- selves. In the minority of jurisdictions, like New York, that recognize pure comparative negligence, a plaintiff who is 99% responsible for causing an accident can still recover 1% of his damages from a defendant who was only 1% negligent in bringing about the accident. This can cause some interesting problems (and legal dilemmas), as the follow- ing example illustrates.

The defendant was driving his new Ferrari at 135 miles per hour down the interstate. The plaintiff, a cautious driver, merged into the defendant’s lane with her 2000 Toyota Corolla, not realizing the defendant’s excessive speed. The defendant, unable to stop in time or to swerve out of the way, rear-ended the plaintiff, causing a total loss to both his car and the plaintiff’s car. At trial, a jury finds the defendant 90% negligent and the plaintiff 10% negligent (for failing to better estimate the defendant’s excessive speed before merging onto the highway). If the defendant’s car is worth $200,000 and the plaintiff’s is worth only $1,000, the defendant will have to pay the plaintiff 90% of her loss ($1,000 3 90% 5 $900), while the plaintiff will have to pay the defendant 10% of his loss ($200,000 3 10% 5 $20,000). You decide whether this outcome is fair.

Comparative negligence (especially in its pure form) has generally resulted in increased litigation, higher jury awards, and higher liability insurance premiums for consumers in states that have adopted it, which means most of us.

Good Samaritan Laws

Although the law imposes no duty to act on members of society to help one another out of difficult situations, in most states, so-called Good Samaritans who take it upon themselves to render assistance to a person in need open themselves to liability for both intentional and unintentional torts to persons they assist.

As a result, and to encourage Good Samaritans to assist injured people, many jurisdictions have enacted legislation to protect medical personnel such as doctors, nurses, and medical

sea80373_08_c08_121-134.indd 7 10/4/12 3:23 PM

128

Section 8.3 Absolute Liability, Strict Liability, Product Liability, and Consumer Protection CHAPTER 8

technicians who administer emergency assistance at accident sites. Such personnel are liable in many (but not all) jurisdictions only for gross negligence or willfully tortuous conduct. But in many jurisdictions, these Good Samaritan laws do not apply to nonmedi- cal personnel who render assistance to accident victims. Thus, it is possible for a person who saves an accident victim’s life by rushing him or her to the hospital but causes some other injury in the process to be successfully sued for a tort by the recovered but ungrate- ful victim. It is sad to say that the safest conduct in most states is for a passerby not to render assistance to accident victims. This is an excellent example of a place where the law and ethics are diametrically opposed.

Assumption of the Risk

A third defense that is a total bar to a recovery in both negligence and intentional torts is assumption of risk. If a plaintiff suffers some injury from engaging in an activity he or she knows to be dangerous, he cannot sue for any injury he sustains as a result. The key here is whether the plaintiff knew or should have known the inherent danger of engaging in the activity in question and whether he or she voluntarily assumed that risk. One who voluntarily engages in a dangerous sport such as boxing, skydiving, skiing, or auto rac- ing, for example, cannot successfully sue for any reasonably foreseeable injury received from engaging in the sport. The same holds true for a person who knowingly uses a defec- tive product. In each of the following examples, the injured party would be barred from recovering damages based on a defense of assumption of the risk.

Keep in mind that the defenses of assumption of risk and its close cousin, product misuse, are available to defendants in any tort action, including absolute liability and strict liability, which we will discuss next.

8.3 Absolute Liability, Strict Liability, Product Liability, and Consumer Protection

Under certain circumstances, a person who is neither negligent nor guilty of an intentional tort may still be required to pay damages for injuries that result from his or her activities if that person engages in certain types of businesses that by definition are highly dangerous.

Ultra-Hazardous Activities

Ultra-hazardous activities such as the manufacturing or handling of explosives, for exam- ple, can never be made completely safe because of the nature of the materials involved. Persons who suffer an injury as a result of an ultra-hazardous activity are entitled to com- pensation without needing to show the defendant’s fault or negligence. Once harm is linked to the ultra-hazardous activity, liability is absolute and automatic; the only issue becomes what compensation to award plaintiffs for their damages.

sea80373_08_c08_121-134.indd 8 10/4/12 3:23 PM

129

Section 8.3 Absolute Liability, Strict Liability, Product Liability, and Consumer Protection CHAPTER 8

As with other torts, the defense of assumption of the risk may be available to defendants in absolute liability actions if it can be shown that a plaintiff knowingly and intentionally assumed the risk. Thus, while a defendant is normally absolutely liable for harm caused by an ultra-hazardous activity such as blasting or demolition work, a plaintiff who will- fully walks into a building that is being demolished, ignoring obvious warnings to keep out, would be held to have assumed the risk of his injuries and barred from recovering damages for them.

Strict Liability in Tort

In contrast with absolute liability, strict liability is a recently developed theory in law that holds manufacturers, wholesalers, and retailers liable for defects in the design or manu- facturing of products that render such products unreasonably dangerous to the intended users. It is not to be confused with the absolute liability that results from engaging in ultra- hazardous activities, discussed in the previous section, which pertain to specific types of businesses, such as those that handle explosives. In strict liability, a manufacturer makes an unreasonably dangerous product owing to design or manufacturing defects. Examples include spoiled food, automobile tires that experience blowouts due to a manufacturing defect during normal use, and a car that ignites when rear-ended because of a defective design (see The Ford Pinto Case). Product liability, on the other hand, is the name given to the type of lawsuit in which the plaintiff sues for his or her injuries under three causes of action: warranty, negligence, and strict liability.

In order for strict liability to attach, the product must be unreasonably dangerous for its intended use, owing to a design or manufacturing defect, and the product must reach the consumer in unaltered form. (Products that are customized or otherwise changed after their manufacture and before they are sold to consumers are not subject to product liabil- ity claims because consumers injured by such altered products can still sue either the manufacturer or customizer under a negligence theory.)

It should be noted that the mere fact that a product is dangerous will not subject its manu- facturer to a product liability claim; the product must be unreasonably dangerous owing to a design or manufacturing defect. Knives, guns, razor blades, and power tools all pose a danger even when properly used; therefore, before consumers can sue for product liabil- ity relating to these or any other product, they must show that the product was not merely dangerous but unreasonably so. Thus, a gun that explodes when fired, a drill that short- circuits and shocks the user when properly used, or a chain saw whose chain breaks and flies off during proper use would all qualify as strict product liability examples.

In addition, manufacturers generally do not have a duty to warn a customer about a prod- uct unless the manufacturer “knew or should have known” that the product would be used in a dangerous manner by the customer; had no reason to believe that the customer would realize the danger of the product; and failed to exercise reasonable care to inform the customer of the danger (Restatement of Torts §388). Consider, for example, the case of a lathe operator using a pair of safety glasses that shattered when hit by an object (American Optical Co. v. Weidenhamer, 457 N.E.2d 181 [Ind. 1983]). The court found no duty to warn on behalf of the manufacturer because the glasses were being used for their intended pur- pose and manufacturers cannot be liable for every type of incident possible. Similarly, if the manufacturer is unaware of any defect in the product, it has no duty to warn.

sea80373_08_c08_121-134.indd 9 10/4/12 3:23 PM

130

Section 8.3 Absolute Liability, Strict Liability, Product Liability, and Consumer Protection CHAPTER 8

In summary, three criteria for strict product liability need to be met:

• The product was properly used; • The product arrived to the consumer from the manufacturer in unaltered form; and • The product malfunctioned because of a manufacturing or design defect.

A Closer Look: The Ford Pinto Case

One of the most famous cases involving negligence and product liability is the Ford Pinto case. While this might seem outdated (as it involves a 1977 automo- bile), the lessons to be learned from the actions of Ford Motor Company and its managers are endur- ing. Start by reading the original lawsuit, Grimshaw v. Ford Motor Co., at http://online.ceb.com/calcases/ CA3/119CA3d757.htm (119 Cal. App.3d 757, 174 Cal. Rptr. 348 Cal. App. [4 Dist. 1981]), and then answer the following questions:

Critical Thinking Questions

1. Who were the plaintiffs in the original lawsuit, and what causes of action were they suing under?

2. Describe the designing and marketing of the Ford Pinto that took place at Ford.

3. What type of crash tests were performed by Ford on the car, and what were the results of the tests? What were the recommendations that resulted from the tests?

4. What were Ford Motor Company’s responses to the recommendations? Why? 5. Who was Mr. Copp, and what role did he play in this case? 6. What was the design defect test, as formulated by the California courts? 7. What are some of the reasons the court upheld the amount of the punitive damages award?

Next Read Mark Dowie’s article, “Pinto Madness,” at http://www.motherjones.com/politics/1977/09/ pinto-madness, and answer the following questions:

Questions to Consider

1. What exactly was wrong with the car? What were its design flaws? 2. Why was the car built with such a defect? 3. Did the Ford management know there was anything wrong with the car? 4. What were the managerial decisions that led to the design flaw in the Ford Pinto? 5. What actions by managers could have been taken to avoid these flaws? 6. What was Ford’s “cost–benefit analysis”? 7. What internal memos existed from Ford workers, and what did they describe regarding

the Pinto? 8. What can you conclude from reading this case about the culture at Ford Motor Company at

the time this car was designed? If you were in charge at the time, what would you have done differently?

Failure to enact safety measures for the Ford Pinto led to a series of burn-related injuries and deaths in the 1970s.

Associated Press

sea80373_08_c08_121-134.indd 10 10/4/12 3:23 PM

131

Key Terms CHAPTER 8

Consumer Protection

Given the number of products manufactured each year that kill or maim individuals, the government has stepped in and created an administrative agency to deal with consumer protection: the Consumer Product Safety Commission. This federal agency is “charged with protecting the public from unreasonable risks of injury or death from thousands of types of consumer products under the agency’s jurisdiction” (http://www.cpsc.gov/ about/about.html). For example, the agency keeps track of amusement park ride inju- ries and regulates that industry. In 2001, it reported that there were more than “8,313 non-occupational amusement ride injuries treated in hospital emergency rooms” (http:// www.cpsc.gov/LIBRARY/Amus2002.pdf). Considering that this is only one industry the agency oversees, that is an astounding number of injuries caused by faulty products.

Consumer safety has hundreds of guidelines and statutes associated with it. They range from the well-known Consumer Product Safety Act (and the Consumer Product Safety Improvement Act, enacted in 2008 to modernize the law) to the more obscure Virginia Graeme Baker Pool and Spa Safety Act (passed in 2007 to mitigate the dangers associated with pools and spas); the Poison Prevention Packaging Act (passed to protect children under the age of five from poisonings caused by open containers); and the Flammable Fabrics Act (passed to regulate the flammability of children’s clothing), to name a few.

The website maintained by the agency at http://www.cpsc.gov is a first-rate source of information about agency news and the current status of laws protecting consumers.

Key Terms

absolute liability Also called liability with- out fault, imposed by law for injuries that result from certain kinds of activities that are, by nature, highly dangerous (e.g., wild animals, ultra-hazardous activities, and defective products).

assumption of risk A situation in which a plaintiff suffers some injury from engag- ing in an activity he or she knows to be dangerous. That person cannot sue for any injury sustained as a result because he or she has assumed the risk.

comparative negligence The plaintiff’s negligence is figured into the final award in a tort case.

contributory negligence At common law, a person suing another for negligence can recover damages only if he or she was free of any negligence.

direct causation Close cause-and-effect relationship between an action and its con- sequences. Also known as foreseeability.

duty of care The standard of behav- ior expected of a person in a particular situation.

foreseeability Knowledge that a particu- lar action will have a certain (harmful) consequence, as viewed by a reasonable person. Same as direct causation.

Good Samaritan law Legislation to protect medical personnel, such as doc- tors, nurses, and medical technicians, who administer emergency assistance at acci- dent sites from liability.

industry standard of care The duty of care established by experts in a particular field.

sea80373_08_c08_121-134.indd 11 10/4/12 3:23 PM

132

Critical Thinking and Discussion Questions CHAPTER 8

intervening cause In a tort case, any out- side circumstance not caused by the defen- dant and not within the defendant’s control.

modified comparative negligence A concept governing jurisdictions that allows plaintiffs to recover damages only if they are less than 50% negligent themselves.

product liability A type of lawsuit in which the plaintiff sues under three theo- ries: warranty, negligence, and strict liabil- ity for injuries sustained as the result of a product malfunction.

proximate cause A close link in space and time established between a harmful conse- quence and a negligent act.

pure comparative negligence A concept governing jurisdictions that allows a plain- tiff to recover damages no matter what his or her percentage of negligence.

pure contributory negligence A concept governing jurisdictions that allows a plain- tiff to recover damages only if he or she were free of any negligence.

reasonable person (care) standard Stan- dard that requires each person in society to act in keeping with the level of consider- ation a reasonably prudent person would apply under the same circumstances.

statutory duty of care Duty of care defined by statute rather than the reason- able person standard.

strict liability Also called strict liability under Section 402 A of the Restatement of Torts. The concept that manufactur- ers, wholesalers, and retailers are liable to consumers for injuries caused by defective goods.

ultra-hazardous activities Inherently dan- gerous activities that cannot be made safe. Anyone who is injured as a direct result of the activity is entitled to compensation as a matter of law, regardless of the level of care employed by the defendant to ensure safety.

Critical Thinking and Discussion Questions

1. What is the essential breach of duty involved in the tort of negligence? 2. What must a plaintiff prove in a negligence action in order to prevail over the

defendant? 3. Define contributory negligence. At common law, what is the effect of finding the

plaintiff contributorily negligent? 4. What is the difference between contributory negligence and comparative

negligence? 5. What are three defenses to tort liability? 6. In your view, what is the reason for Good Samaritan laws? Do they encourage

detachment and serve to discourage people of good conscience from rendering assistance in emergency situations for fear of being sued? Discuss the ethical and sociological ramifications of this issue. Do you have any suggestions for a model Good Samaritan law that would protect the safety of accident victims while encouraging citizens to render assistance in emergency situations?

sea80373_08_c08_121-134.indd 12 10/4/12 3:23 PM

133

7. Huge Car Company is in the process of developing a new family car: the WeGo. The company is very concerned about pricing for the vehicle and is determined that the cost must come in at around the $20,000 range. Thus, the company is mak- ing every effort to design and build a car that can meet that price. In so doing, the company decides that some of the metal structuring in the door frames and roof can be eliminated, at a substantial cost savings. The company makes the altera- tions and then tests the vehicle. In all the tests, the car performs better than aver- age in terms of structural damage and injury to occupants. The company then hires an independent group of engineers to test the car and to come up with their own findings. The engineers arrive at the same conclusion regarding the safety of the vehicle. The company then proceeds to produce the vehicle. About six months later, the Henderson family is killed when their WeGo flips over and crushes all of the occupants. Discuss the outcome of a lawsuit by the Henderson Estate against Huge Car Company under the theory of negligence. Then discuss it under the theory of strict liability.

Critical Thinking and Discussion Questions CHAPTER 8

sea80373_08_c08_121-134.indd 13 10/4/12 3:23 PM

sea80373_08_c08_121-134.indd 14 10/4/12 3:23 PM