Essentials of Business Law and The Legal Environment 9th Edition Mann Solutions Manual
Essentials of Business Law and The Legal Environment 9th Edition Mann Solutions Manual
Chapter 8
TEACHING NOTES
A tort is a civil wrong that causes injury to persons, their property, or their economic interests. In the last
chapter we covered intentional torts. In this chapter we cover the other two areas of tort law, negligence and
strict liability. What are the differences?
Intentional torts are committed when people take an action desiring to injure someone or when they take an
action that is substantially certain to cause injury.
Negligence is conduct that creates an unreasonable risk of harm.
Strict liability is not based on any fault of a person; rather, it is based on the nature of the activity a person
engages in.
Tort law is primarily common law and varies from state to state. It is dynamic, and over the last 30 years the
96 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8
courts have gradually expanded liability. A counter-movement is now under way to restrict liability. Tort
reform is the name for efforts to legislate changes in tort law, both at the state and federal levels. The main
thrust is to limit the damages that juries can award to plaintiffs, particularly punitive damages, damages for
medical malpractice, and pain and suffering awards.
I. NEGLIGENCE
Restatement definition: “conduct which falls below the standard established by law for the protection of others
against unreasonable risk of harm.” The standard established by law is the conduct of a reasonable person
acting prudently and with due care under the circumstances; this does not include unavoidable accidents.
Children — usually held to a standard of conduct based on their own age and experience, except when children
engage in an adult activity like flying a plane or driving a boat.
Physical Disability – A person who is ill or physically disabled must conform to the standard of conduct of a
reasonable person under like disability.
Mental Deficiency – No allowance is made for insanity, voluntary intoxication, or other mental deficiency. A
person with a mental deficiency is held to the standard of a person who is not mentally deficient.
Superior Skill or Knowledge – A person who is qualified to practice a profession or trade that requires special
skill and expertise is required to use the same care and skill normally possessed by members of that profession
or trade.
Emergencies – In sudden, unexpected events that call for immediate action, the standard is that of a reasonable
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 97
CASE
Ryan v. Friesenhahn
Facts: Todd Friesenhahn, son of Nancy and v. Board, a prior Texas Supreme Court decision in
Frederick Friesenhahn, held an “open invitation” party which it was held that no third party liability should be
at his parent’s home that encouraged guests to “bring imposed on social hosts who provide alcohol to adult
your own bottle.” Sabrina Ryan attended the party, guests. The Texas Supreme Court gave two reasons
became intoxicated, and was involved in a fatal for its holding in Graff: first, the host cannot
accident after she left the party. Sandra and Stephen reasonably know the extent of his guests’ alcohol
Ryan, Sabrina’s parents, sued the Friesenhahns for consumption level; second, the host cannot
negligence, alleging that the Friesenhahns were reasonably be expected to control his guests’ conduct.
aware of the underage drinking at the party and of However, this rationale does not apply where the
Sabrina’s condition when she left the party. The trial guest is a minor. The adult social host need not
court granted summary judgment for the estimate the extent of a minor’s alcohol consumption
Friesenhahns. because serving minors any amount of alcohol is a
Decision: Judgment reversed. criminal offense. Furthermore, the social host may
control the minor, with whom there is a special
Opinion: Accepting the Ryan’s allegations as true, relationship, analogous to that of parent-child.
the Friesenhahns were aware that minors possessed
and consumed alcohol on their property and While one adult has no general duty to control the
specifically allowed Sabrina to become intoxicated. behavior of another adult, one would hope that adults
The Texas Alcoholic Beverage Code provides that a would exercise special diligence in supervising
person commits an offense if, with criminal minors. When a party is for the purpose of engaging
negligence, he “makes available an alcoholic in the consumption of alcohol by minors, adults
beverage to a minor.” A violation of a statute certainly have a greater duty of care. Moreover, in
constitutes negligence per se if the injured party is a view of the legislature’s determination that minors are
member of the class protected by the statute. The not competent to understand the effects of alcohol, we
Alcoholic Beverage Code was designed to protect the find sufficient legislative intent to support our holding
general public and minors in particular. Therefore, that a duty exists between the adult social host and
Sabrina was a member of the protected class, and we the minor guest. Accordingly, we find that the Ryans’
find that the Ryan’s have stated a cause of action petition stated a common-law cause of action.
against the Friesenhahns for violation of the Alcoholic Interpretation: A violation of a statute constitutes
Beverage Code. negligence per se if the injured party is a member of
In considering common-law negligence as a basis for the class protected by the statute.
social host liability, courts have relied on Graff
Case Questions
1. What is the legal significance of the court’s finding of possible negligence per se?
2. How would this case change if Todd had held this party without his parents’ knowledge?
Ethical Question: Did the Friesenhahns act unethically? Explain.
Critical Thinking Question: Should a court extend social host liability for providing alcohol to adult guests?
Explain.
98 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8
Duty to Act
Except in special circumstances, no one is required to aid another in peril. This rule does not apply if:
• the relationship between the parties creates an obligation
• one party has negligently placed the other in a position of potential harm
• a person’s conduct, whether tortious or innocent, has injured someone else and left that person helpless
and in danger of further harm
A person who voluntarily helps someone in need is liable if her failure to exercise reasonable care increases the
risk of harm, causes harm, or leaves the other in a worse position.
A parent is not liable for the torts of a minor child simply due to the parental relationship, but is liable if the
parent encourages or otherwise participates in the tort. Liability may also be assessed due to negligence.
CASE
Soldano v. O’Daniels
Facts: On August 9, the plaintiff’s father, Darrell defendant and the deceased. Nonetheless, the court
Soldano, was shot and killed at the Happy Jack determined to re-examine the common law rule of
Saloon. The defendant, O’Daniels, owns and operates nonliability for inaction in the special circumstances of
the Circle Inn, an eating establishment across the this case. Imposing such a duty to third parties
street from the Happy Jack Saloon. On the night of the requires an examination and balancing of
shooting, a patron of the Happy Jack Saloon came foreseeability of harm, certainty that the plaintiff would
into the Circle Inn and informed the Circle Inn suffer injury, the connection between the defendant’s
bartender that a man had been threatened at Happy conduct and the injury, moral blame attached to the
Jack’s. The patron requested that the bartender either defendant’s conduct, policy of preventing future harm,
call the police or allow the patron to use the phone for extent of the burden to the defendant, the
that purpose. The bartender refused both to make the consequences to the community of imposing a duty to
call and to allow the Happy Jack patron to use the exercise care, and the availability, cost and
phone. The plaintiff alleges that the actions of the prevalence of insurance for the particular risk
Circle Inn employee were a breach of the legal duty involved. The court concluded, on these facts, that the
that the Circle Inn owed to Soldano, who died. The Circle Inn employee’s conduct displayed a disregard
defendant claims that there was no legal obligation to for human life in that the burden on the defendant to
take any action, and therefore there was no duty owed respond was minimal. Balancing these factors, the
to Soldano. The trial court dismissed the case on the court concluded that there was an affirmative duty on
defendant’s motion for summary judgment. the defendant’s part to respond, and failure to respond
resulted in a legal breach of the duty of care. It bears
Decision: Appellate court reversed and remanded. emphasizing that the duty in this case does not
Opinion: The defendant points to the established rule require that one go to the aid of another. Rather, the
that one who has not created a peril ordinarily does use of a telephone, in the public portion of a business
not have a duty to take affirmative action to assist an open to the public, during business hours, should not
imperiled person. The courts have increased the be refused for a legitimate emergency call.
instances in which affirmative duties are imposed, not Interpretation: Although a person may not have a
by direct rejection of the common law rule, but by duty to help another, a person has a duty not to hinder
expanding the list of special relationships that will others who are trying to help.
justify departure from that rule. In this case, however,
there was no special relationship between the
Case Questions
1. Under the common law, when is there a duty to act?
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 99
2. What is a method for expanding the duty to act under the common law, noted by the Soldano court?
Ethical Question: Did the bartender act unethically? Should the patron have done more? Explain.
Critical Thinking Question: Should the courts go beyond the rule of this case and impose an affirmative
duty to aid another person who is in peril if it can be done without endangerment? Explain.
NOTE: Figure 8-2 in the textbook shows that the duties increase from trespasser to licensee to invitee.
Duty to Trespassers — A trespasser enters or remains on the land of another without permission. The
lawful possessor of the land is not liable for failure to maintain safe conditions, but may not inflict
intentional injury on a trespasser.
Duty to Licensees — A licensee is privileged to enter or remain on land only by the consent of the lawful
possessor; includes members of the household, social guests, and salespersons calling at private homes.
The possessor must warn the licensee of any known dangerous activities and conditions which the licensee
is unlikely to discover.
Duty to Invitees — An invitee is a person invited upon land as a member of the public or for a business
purpose. A public invitee visits the land as a member of the public for a purpose for which the land is
intended, as with a public park or a public government office.
A business visitor is an invitee who enters the premises for a purpose connected with business with the
possessor of the land, such as shopping in a store or entering a residence to make repairs.
If the possessor could discover a hazard by exercise of reasonable care, he is under a duty to protect
invitees from dangers they are unlikely to discover, whether the possessor is aware of the danger or not.
CASE
Love v. Hardee’s Food Systems, Inc.
Facts: At about 3:15 p.m. on November 15, 1995, else that would either restrict access to the
plaintiff, Jason Love, and his mother, Billye Ann bathroom or warn of the danger.
Love, went to the Hardee's Restaurant in Arnold, Jason stated after the fall that his back and leg
Missouri, owned by defendant, Hardee's Food were "hurting pretty bad." His mother reported the
Systems, Inc. There were no other customers in the fall. The supervisor filled out an accident report
restaurant between 3:00 p.m. and 4:00 p.m., but form, which reported that the accident occurred at
two or three workmen were in the back doing 3:50 p.m. The supervisor testified that the water
construction. The workmen reported that they did appeared to have come from someone shaking his
not use the restroom and did not see anyone use hands after washing them. The supervisor could
the restroom. When Jason went to use the not recall the last time the restroom had been
restroom, he slipped on water on the restroom floor. checked. Jason was taken to a hospital emergency
He fell backwards, hit his head, and felt a shooting room. As a result of his injuries, he underwent two
pain down his right leg. He found himself lying in an back surgeries, missed substantial time from work,
area of dirty water, which soaked his clothes. There and suffered from continuing pain and limitations on
were no barricades, warning cones, or anything his physical activities.
100 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8
Hardee’s had a policy requiring that the restroom the restroom and could spill, drop, or splash water
be checked and cleaned every hour by a on the floor. So, the restaurant owner must use due
maintenance person, who was scheduled to work care to guard against danger from water.
until 3:00 p.m., but normally left at 1:00 p.m. The There was substantial evidence to support
supervisor could not recall whether the submissibility. First, there was evidence that the
maintenance person left at 1:00 p.m. or 3:00 p.m. water came from the use of the restroom. It was on
on November 15 and the defendant was unable to the floor of the restroom and the supervisor testified
produce the time clock report for that day. it appeared that someone had shaken water from
It was also a store policy that whenever employees his hands on the floor.
cleaned the tables, they would check the restroom. If the water was caused by a non-employee, the
If an employee had to use the restroom, then that water was on the floor for at least 50 minutes, or
employee was also supposed to check the longer, because no other customers were in the
restroom. The restaurant supervisor did not ask if store to use the restroom after 3:00 p.m. and the
any employees had been in the restroom, or if they workmen on the site had not used the restroom.
had checked it in the hour prior to the accident, and
did not know if the restroom was actually inspected In addition, the defendants' employees had the
or cleaned at 3:00 p.m. The restaurant had shift opportunity to observe the hazard. The restroom
inspection checklists on which the manager would was to be used by the employees and was
report on the cleanliness of the restrooms and supposed to be checked by them when they used
whether the floors were clean and dry. However, it; employees cleaning tables were supposed to
the checklists for November 15 were thrown away. check the restroom when they cleaned the tables;
and a maintenance person was supposed to check
Plaintiff filed the lawsuit against defendant to and clean the restroom every hour.
recover damages for negligence. The jury ruled in
plaintiff's favor in the amount of $125,000. There was evidence that the maintenance person
charged with cleaning the restroom every hour did
Decision: Judgment of the trial court is affirmed. not clean the restroom at 3:00 p.m. as scheduled
Opinion: In order to have made a submissible on the day of the accident. There was testimony
case, the plaintiff had to show that defendant knew that the maintenance person usually left at 1:00
or, by using ordinary care, could have known of the p.m. The supervisor could not recall what time the
dangerous condition and failed to use ordinary care maintenance person left that day and defendant
to remove it, barricade it, or warn of it, and plaintiff was unable to produce the time clock reports for
sustained damage as a direct result of such failure. that day which would have shown when the
In order to establish constructive notice, the maintenance person clocked out. This could have
condition must have existed for a sufficient length created a span of 2 hours and 50 minutes during
of time or the facts must be such that the defendant which there was no employee working at the
should have reasonably known of its presence restaurant whose primary responsibility was to
clean the restroom.
In this case the accident took place in the
restaurant's restroom which is provided for the use Interpretation: The owner or possessor of property
of employees and customers. The cause of the is liable to an invitee if the owner knew or, by using
accident was water, which is provided in the ordinary care, could have known of the dangerous
restroom. The restaurant owner could reasonably condition and failed to use ordinary care to remove
foresee that anyone using the restroom, customers it, barricade it, or warn of it, and the invitee
or employees, would use the tap water provided in sustained damage as a direct result of such failure.
Case Questions
1. How frequently should a public bathroom be checked for safety hazards? What expectation is reasonable?
2. Which employee is most at fault in this case?
Ethical Question: Is this ruling fair? Is the expectation unreasonable? Explain.
Critical Thinking Question: What level of responsibility to watch for dangers should the customer be held to
in a case like this?
B. PROXIMATE CAUSE
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taivuta heidät, koska he eivät enää ole kristityttä eivätkä halua auttaa
kreiviä hänen hädässään, päästämään minut vihdoinkin rukoilemaan
tuon miesraukan puolesta, joka luultavasti on suuresti Jumalan avun
tarpeessa.»
Kaukaa voi hän jo kuulla, miten niitä nyt ajettiin takaisin talleihin,
mutta hän ei halunnut kysyä, montako niistä tuli ja savu olivat
tappaneet. Kaiken tuon sai hän kyllä tietää tarpeeksi pian — jo
huomenna. Tänään ei hän luullut kaipaavansa enää muuta kuin
lepoa. Hän totesi, että useimmat talonpojat olivat poislähdössä
palatakseen jälleen Arokszállakseen. Tuo taivaanrannalta näkyvä
ruusunpunainen juova alkoi levetä ja kirkastua, ja savunkin läpi voi
hän nähdä, miten tähdet himmenivät auringonnousun lähestyessä.
Isä Ambrosius sanoi hänelle monta lohduttavaa sanaa, ja jokainen
talonpoika nosti kunnioittavasti lakkiaan mennessään vararikkoon
joutuneen kreivin sivu.
TOINEN OSA
XVI
PÄÄSIÄISAAMU.
»Mistä?»
»Mutta sitä kai et voine kieltää», sanoi vanha Berczi, »että juuri
tuona tulipaloyönä muuttui András tuollaiseksi omituiseksi ja
vakavaksi»?
»Pauhu oli hirmuinen viime yönä. Eilen kävin aivan kreivin talleilla
asti ja minusta näytti, että koko Bideskuty on veden vallassa».
Jokaisen asunnon ovesta tuli nyt tielle kauniita tyttöjä, jotka olivat
pukeutuneet koko sunnuntaikoreuteensa. Leveät silitetyt pellavahihat
kiilsivät ja kansallisväriset, punaiset, valkoiset ja viheriät nauhat
liehuivat tuulessa. Kaunis huntu, joka oli sidottu niskaan suurella
nauharuusulla, täydensi kuningatarmaisen pienen pään kauneutta.
Tukka oli kammattu sileäksi ja letitetty kahdeksi paksuksi palmikoksi,
pusero oli edestä kauniisti koruompeluin kirjailtu ja hoikan vartalon
ympärille oli napitettu ahtaat liivit. Lukemattomat hameet heiluivat
iloisesti tyttöjen kävellessä omituisesti lanteitaan heiluttaen, suuret
kultaiset korvarenkaat, useat helminauhat ja liivien kirkkaat soljet
loistivat auringossa yhtä kirkkaasti kuin kauniit silmät ja lumivalkoiset
hampaat. Vanhemmilla naisilla oli hieman tummemmat puvut ja
pitemmät hunnut, kirkkaanväriset huivit peittivät heidän hartioitaan ja
kaikilla oli käsissään suurilla joko messinki- tahi hopeahakasilla
varustetut raskaat rukouskirjat.
»Hän tuli kyllä tänne viime vuonna, mutta en tiedä, tuleeko hän
tänään», sanoi eräs nuori Bideskuty’n paimen. »Kun sivuutin
päärakennuksen, odottivat vaunut ja hevoset portaitten edustalla,
joten on varma, että kreivitär ja nuori neiti saapuvat».
»Auta minut ylös, Rezsö, äläkä puhu tyhmyyksiä. Olen varma, että
jalo
Ilonka on aivan alttarilla olevan pyhän neitsyen näköinen».
KÖYHTYNYT KREIVI.