"LOVE ALL, TRUST A FEW, DO WRONG TO NONE,"

WILLIAM SHAKESPEARE

drops a book on Adam's head. Adam has a weak skull that cracks upon impact, killing him. Jeremy is liable for the full extent of Adam's injury, even though dropping a book on someone's head would not normally kill someone). Intervening causes: Sometimes a force of external origin occurs after the defendant's negligent act and the plaintiff gets injured. Proximate cause is found if the intervening cause would have been foreseeable to a reasonable person faced with similar circumstances. Otherwise, it may be found that the intervening cause supersedes the defendant's actions, and the defendant is not liable.

Indemnification: In some cases, the out-of-pocket defendant may be entitled to insitute an indemnity suit for full reimbursement of the damages. The target of the suit does not have to have been a member of the original suit; it can be a third party. Indemnification is generally allowed when one party is deemed responsible for the out-of-pocket defendant either by law (see respondeat superior) or contract.

Negligent infliction of emotional distress

The majority view is that the plaintiff can recover from emotional harm without physical injury when the plaintiff is in the zone of danger (i.e., the risk of physical injury existed) and there was a subsequent physical manifestation of the emotional harm (e.g., nervous twitch or heart attack). Additionally, some jurisdictions allow recovery for bystanders who witness an accident and are related to an injured party le.g., a mother who witnesses her child being hit by a car could recover from emotional harm, even without a physical manifestation of the emotional harm}.

DAMAGES
For a valid negligence claim, it must be proven that the defendant's the plaintiff monetary damages. The damage can occur to persons, rights. Plaintiffs have a duty to reasonably mitigate the damages. conduct caused property, or

Nominal damages: When the defendant violates tne plaintiff's rights without a substantial loss or injury to the plaintiff, the court can award nominal damages (a small sum of money) to make the judgment a matter of record. Compensatory damages: Compensatory damages are a monetary sum equivalent to the full loss or harm suffered by the plaintiff. These can be awarded for physical harm, property damage, and in some cases, emotional harm without physical injury (negligent infliction of emotional distress). Puni1ive damages: The purpose of punitive damages is to punish particularly egregious behavior. Punitive damages are monetary awards that are in addition to compensatory damages. They are generally not available in simple negligence cases. They can be awarded for products liability, misrepresentation, defamation, malicious prosecution, and, in some jurisdictions, recklessness.

DEFENSES TO NEGLIGENCE
Uability with multiple defendants: When damages are clearly separable, defendants are generally severally liable. Under several liability, the defendant is only liable for the amount of damage that he or she caused, and the plaintiff can only recover a percentage of the total damages from each defendant. Under joint and several liability, the plaintiff can recover the whole amount of damages from any of the defendants as long as the plaintiff's total recovery does not exceed 100 percent. Then, the defendants with a judgment against them may be able to recover all or part of their losses from the remaining defendants through contribution or indemnification. Contribution: The defendant who actually pays for the plaintiff's injury (out-of-pocket defendant) can institute an action for contribution from the other defendants who were found jointly liable for an amount proportional to the number of joint tortfeasors (e.g., 50 percent if there are 2 defendants). A defendant can only sue for contribution against defendants who were part of the original suit and found jointly liable. Some jurisdictions allow for comparative contribution, which allows recovery in proportion to the relative fault of each defendant.

Traditional common law defenses: There are two common law defenses that have been abolished in all but a few jurisdictions. Contributory negligence: The plaintiff is barred from any recovery if the plaintiff contributed in any way to his or her own injury. In some jurisdictions, the last clear chance doctrine is used to mitigate this defense. The plaintiff is not barred from recovery if the defendant had the last clear chance to avoid the accident and negligently failed to do so. Assumption of the risk: This defense has been merged into comparative negligence. Assumption of the risk can be express or implied. Under express assumption of the risk, there is an actual agreement that distributes the risks. These agreements are generally followed unless considered unconscionable. In the absence of an agreement (implied assumption of the risk),the plaintiffis barred from recovery ifthe plaintiffboth had knowledgeof the risk and decided to engage in the activityanyway.Thisdoctrine alsocovers public rescuers (e.g., firefightersand policeofficers), preventing them from recoveringfor being injured while carrying out their normal rescue duties. Comparative negligence: The majority of jurisdictions now adhere to some form of comparativenegligence. under this doctrine, a party is responsible for the amount of damage he or she has caused. The plaintiff's contribution to his or her own injury is calculated as a percentage, and the plaintiff's award is reduced by that amount. Under pure comparative negligence, it does not matter how culpable that plaintiffis, the plaintiffcan recover the remaining percentage from the defendant (even if it is only one percent). Most jurisdictions apply modified comparative negligence, where the plaintiff is barred from recovery if he or she is more than 50 percent liable (or exactly 50 percent in some jurisdictions) for his or her own injury.

STRICT LIABILITY
In a strict liabilityclaim, fault is not an issue. In these cases, the court does not decide what level of precaution is appropriate. Instead, anyone engaged in the activity is responsible for the full cost of the activity, including any accidents. This gives an incentive for the individual to determine the optimal level of prevention necessary to avoid injury.

Other types of products liabilityclaims

There are other types of products liability claims in addilion to strict liability. It is possible to have a negligence claim if the conditions of strict liability do not apply. The plaintiff may also recover based on an intentianal torts or contracts law theory. In an intentional torts claim, the defendant must know or be substantially certain that the plaintiff would be injured. Punitive damages are available in these claims and the normal defenses to intentional torts apply. A claim can also be based in controcts, most commonly found on express or implied warranty of merchantabilily and fitness. When an express warranty exists, the plaintiff does not need to prove fault and can collect damages for personal injury, property damage, and economic loss. Defenses include assumption of the risk, comparative negligence, and failure to give notice of a breach of contract. If no express warranty exists, but the plaintiff can prove an implied warranty, the same rules apply.

INJURIES CAUSED BY ANIMALS

Domestic animals: Strict liability does not apply to domestic animals, unless the owner knows
in advance that the animal has a dangerous propensity (e.g" training to

attackstrangers).

Wild onimals: Strict liabilityalways applies, even if the owner had no knowledge that the animal was dangerous or if the owner has taken reasonable precautions to prevent the animal from injuring others.

INJURIES CAUSED BY ULTRA-HAZARDOUS ACTIVITIES When engagedin ultra-hazardousactivity (e.g., using explosives or working with toxic chemicals), strict liabilityalways applies for any damage caused by that activity.Tobe considered an ultra-hazardous activity, there must be a risk of serious harm that exists even if reasonable care is used. In some cases, commonality is also a factor in determining whether an
activity is ultra-hazardous. Commonality asks whether where it is being carried out. the activity is uncommon in the area

DEFENSES

TO STRICT

LIABILITY

INJURIES

CAUSED

BY PRODUCTS

Contributory negligence: Generally, the plaintiff's contributory negligence is not a bar to recovery unless the plaintiff knowingly and unreasonably sUbjects himself or herself to a risk of harm (e.g., a ptaintiff cannot recover if he or she knows that an animal is dangerous and then intentionally taunts it by poking it with a stick). Assumption of risk: In some jurisdictions, there can be a limited voluntary assumption of risk defense based on a consent doctrine. If a plaintiff chooses a dangerous profession, the plaintiff might not be able to reCl)ver in strict liability from injuries arising from the expected risks of the profession (e.g., a lion tamer could not recover in strict liability from the circus that owned the lion for injuries caused by the lion's bite. Similarly, a plaintiff who uses services from a defendant that is engaged in an ultra-hazardous activity may not be able to recover for injuries that arise out of the activity's well-known risks). Abuse/Misuse: Abuse or misuse of a product is a defense only if the plaintiff gets injured by using the product in a way that is not intended, and this use is not foreseeable to the manufacturer (e.g., the manufacturer would not be strictly liable for injuries arising out of the plaintiff unsucessfully trying to use his or her lawnmower to get to the hospital. However, a manufacturer would be strictly liable for injuries arising out of a person standing on its chair, a foreseeable misuse). In most jurisdictions. a manufacturer is even strictly liable if the plaintiff removes a safety feature from a product with little effort and then is injured, so long as it was foreseeable that the plaintiff would try to remove the fea1ure and could easily do so. Comparative fault: Many jurisdictions allow comparative fault as a defense to lessen the recovery of the plaintiff. This is identical to the comparative negligence defense, when the plaintiff's award is reduced by the percentage he or she is at fault for his or her own injuries.

Generally, strict products liability only applies to merchants (sellers of goods) and not to providers of services !they would fall under negligence rules!. However, commercial lessors le.g., car rental company) are covered by strict liability. To make a strict products liability claim, there must be a defect in the product that was present when the product left the defendant's hands, and the plaintiff must be a foreseeable user making a foreseeable use of the product. No requirement for direct dealing between the defendant and plaintiff exists. There are three major types of defects. Manufacturing defects: An anomaly in a mass-produced product that makes it more dangerous. When the manufacturer sells a normally safe product in defective condition, it is strictly liable for any foreseeable injuries, and it is not a defense that the manufacturer used reasonable care to create the product. As long as the product has traveled in ordinary channels of distribution, the presence of a defect when the product left the manufacturer's hands is presumed. Design defects: Occurs when an entire product line has a dangerous defect. The manufacturer is strictly liable for foreseeable injuries from design defects as long as there is another costeffective way to construct the product that will make it safer without impairing the utility of the product. Failure to warn: Occurs when there is an inherent, non-obvious danger that exists in the product that the consumer should have been warned about. The manufacturer is strictly liable if it does not warn consumers about this danger.