Chapter 10: Torts: Negligence and Strict Liability

After covering intentional torts in the previous chapter, in this chapter we turn out attention to the remaining types of torts. Perhaps the most important of the three types of tort liability, negligence, receives extended treatment in this chapter. The purpose is to provide the student with an in-depth understanding of the elements of negligence, including duty of care, breach of the due care, the theory of the reasonable person (along with modifications), actual cause, and proximate cause. No discussion of negligence is complete without touching on defenses to negligence, looking at both plaintiff’s contribution and assumption of the risk. Strict liability, the third theory of tort liability, is treated from both historical and contemporary points of view. The traditional nature of strict liability is presented, but the focus of this part of the chapter is on product liability. The topic of manufacturer liability is framed in terms of Restatement (Second) Torts and the more progressive Restatement (Third) Torts: Product Liability vantage points.

A. Introduction 1) History 2) Role fault-based torts today 3) Role of product liability today B. Negligence 1) Five Elements of the prima facie case 1. Duty 2. Breach 3. Actual cause 4. Proximate cause 5. Damage 2) Damages available 3) Duty 1. Nature of Duty 2. Nature of Right 3. Due of Care 4. Reasonable Person Test a. Uniform standard of behavior b. Test: What a reasonable person would have done in the same or similar circumstances i. Consideration of physical characteristics ii. Consideration of knowledge iii. Factors iv. Role of Foreseeabilty v. CASE: Palsgraf: Justice Cardozo writes that a defendant is liable only if the danger is foreseeable. This portion of