LAW 531 Week 2

LAW 531 Week 2

Review the Ethics in Action scenario in Chapter 7 of your text. (I am attaching)

Write a paper of not more than 1,050 words in which you answer the following questions:

Does an employer have an ethical obligation to take corrective or preventative action when the employer knows, or has reason to know, that the employee poses a danger to others?

Does it matter whether the employer has irrefutable evidence that the employee poses a danger to others or whether the employer has only a reasonable suspicion to that effect?

If an employer has an ethical obligation to take corrective or preventative action, to whom does that obligation extend and what should that obligation entail?

Does the employer owe any ethical obligation to the employee in such situations?

What potential torts are demonstrated in the scenario?

Analyze any potential criminal liability for the employer and the employee.

Cite at least 5 peer-reviewed references.

Also make like a 3 slide powerpoint PowerPoint® presentation in which I summarize the key points of the members’ individual assignments and defend the individual findings. In addition, include in the presentation a description of the various torts covered in the text.

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prosecuted.
CHAPTER 7
NEGLIGENCE AND STRICT LIABILITY
uring evening hours, Hen Horn, a truck driver employed by Ralphs Grocery Co. (Ralphs),
was driving in California on Interstate 10 as part of his job duties. Horn stopped his tractortrailer
rig on a large dirt shoulder alongside the highway in order to eat a snack he had
brought with him. He regularly stopped for a snack in that spot when driving in the vicinity. The
dirt shoulder was part of a somewhat larger dirt area that sat between Interstate 10 and an
intersecting highway. Near the spot where Horn parked, California’s Department of Transportation
had placed an “Emergency Parking Only” sign. Horn saw the sign from where he parked,
approximately 16 feet from the outermost traffic lane of Interstate 10.
That same evening, Adelelmo Cabral was driving home from work alone in his pickup truck on
Interstate 10. Juan Perez was driving behind Cabral on that same highway. Perez saw Cabral’s
vehicle, which was traveling at 70 to 80 miles per hour, swerve within its lane, then change lanes
rapidly, and then pass other vehicles. Cabral’s pickup truck crossed the outermost lane of traffic,
left the highway, and traveled parallel to the road along the adjacent dirt until it hit the rear of
Horn’s trailer. Perez saw no brake lights or other indications of an attempt on Cabral’s part to slow
down before the collision. A toxicology report on Cabral, who died at the scene, was negative.
Because there was no evidence of intoxication, suicide, or a mechanical defect in the pickup, it
appeared that Cabral either had fallen asleep or had been victimized by an unknown medical
condition.
Cabral’s widow, Maria Cabral, sued Ralphs for the allegedly wrongful death of her husband.
She contended that Ralphs should be held liable because its employee (Horn) had caused her
husband’s death through negligence in stopping for nonemergency reasons on the freeway
shoulder. Ralphs responded by denying that Horn was negligent and by asserting that the
decedent’s own negligence was the real cause of the accident. A California jury concluded that both
Cabral and Horn were negligent and that their respective negligent acts were substantial factors in
causing Cabral’s death. The jury returned a verdict in favor of Maria Cabral, but, as required by
California law, the trial court reduced the amount of damages awarded by the jury in order to allow
for the fact that the decedent’s own negligence had partially accounted for his death. Ralphs
appealed to the California Court of Appeal, which reversed the lower court’s decision. The Court
of Appeal held that there was no basis for holding Ralphs liable for negligence because neither
Ralphs nor Horn owed the decedent a duty of reasonable care to prevent a collision with Horn’s
parked-off-the-roadway rig. Maria Cabral appealed to the Supreme Court of California.
Think about the above facts as you study this chapter. Consider the following questions:
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• Was the Court of Appeal correct in its conclusion that neither Horn nor Ralphs owed a duty to
the decedent? What considerations go into a determination of whether a duty to exercise
reasonable care exists? How do you think the Supreme Court of California ruled on the duty
question?
• In addition to proving the existence of a duty, what other elements did the plaintiff need to prove
in order to establish that Ralphs should be held liable for negligence?
• In any event, why would Ralphs even be at risk of liability for negligence? If there was
negligence here, wasn’t it Horn’s negligence? Shouldn’t the plaintiff have sued Horn rather than
Ralphs?
• Even if Horn was negligent and even if Ralphs might otherwise be liable for Horn’s negligence,
why wouldn’t the decedent’s own negligence bar the plaintiff from winning this wrongful death
case? What if the decedent’s negligence was less of a causation factor than any negligence on the
part of Horn and Ralphs? Would that matter in determining the case’s outcome and/or the amount
of damages to be awarded? What if the decedent’s negligence was more of a causation factor
than any negligence on the part of Horn and Ralphs? Would that matter in determining the case’s
outcome and/or the amount of damages to be awarded?
• Although there was no evidence in this case that Horn was an unsafe driver generally, did Ralphs
have a legal obligation when it hired Horn to conduct some sort of investigation of his driving
skills, history, and background before sending him out on the road? Why or why not? Did Ralphs
have any ethical obligations in that regard? If so, what are they, and why? If not, why not?
LO LEARNING OBJECTIVES
After studying this chapter, you should be able to:
7-1 Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and
causation of injury).
7-2 Explain what the reasonable care standard contemplates.
7-3 Explain the role of foreseeability in determining whether a defendant owed the plaintiff a
duty of reasonable care.
7-4 Explain what goes into a determination of whether a defendant breached the duty of
reasonable care.
7-5 Explain the differences among the respective duties of care owed by owners or possessors of
property to invitees, licensees, and trespassers.
7-6 Explain what the doctrine of negligence per se does and when it applies.
7-7 Identify the types of injuries or harms for which a plaintiff may recover compensatory
damages in a negligence case.
7-8 Explain the difference between actual cause and proximate cause.
7-9 Explain what an intervening cause is and what effect it produces.
7-10 Explain the difference between traditional contributory negligence and the comparative
negligence doctrine now followed by almost all states.
7-11 Explain the difference in operation between pure comparative negligence and mixed
comparative negligence.
7-12 Identify circumstances in which strict liability principles, rather than those of negligence,
control a case.
LO7-
1
LO7-2
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THE INDUSTRIAL REVOLUTION THAT changed the face of 19th-century America created serious
strains on tort law. Railroads, factories, machinery, and new technologies meant increased injuries to
persons and harm to their property. These injuries did not fit within the intentional torts framework
because most were unintended. In response, courts created the law of negligence.
Negligence law initially was not kind to injured plaintiffs. One reason was the fear that if infant
industries were held responsible for all the harms they caused, the country’s industrial development
would be seriously restricted. As a viable industrial economy emerged in the 20th century, this concern
began to fade. Also fading over the same period was the 19th-century belief that there should be no tort
liability without genuine fault on the defendant’s part. More and more, the injuries addressed by tort law
have come to be seen as the inevitable consequences of life in a high-speed, technologically advanced
society. Although 21st-century negligence rules have not eliminated the fault feature, they sometimes
seem consistent with a goal of imposing tort liability on the party better positioned to bear the financial
costs of these consequences. That party often is the defendant. However, it is important to remember that
even though negligence law may seem to have become more proplaintiff in recent decades, statistics
indicate that defendants win negligence cases at least as often as plaintiffs do.
Because most tort cases that do not involve intentional torts are governed by the law of negligence,
the bulk of this chapter will deal with negligence principles. In a narrow range of cases, however, courts
dispense with the fault requirement of negligence and impose strict liability on defendants. Strict
liability’s more limited application will be addressed during the latter part of this chapter. The chapter
will conclude with discussion of recent decades’ tort reform movement, whose primary aims are to
reduce plaintiffs’ ability to prevail in tort cases and limit the amounts of damages they may receive when
they win such cases.
Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation
of injury).
Negligence
The previous chapter characterized negligence as conduct that falls below the level reasonably necessary
to protect others against significant risks of harm. The elements of a negligence claim are (1) that the
defendant owed a duty of care to the plaintiff; (2) that the defendant committed a breach of this duty;
and (3) that this breach was the actual and proximate cause of injury experienced by the plaintiff. In
order to win a negligence case, the plaintiff must prove each of these elements, which will be examined
in the following pages. Later in the chapter, defenses to negligence liability will be considered.
Explain what the reasonable care standard contemplates.
Duty and Breach of Duty
Duty of Reasonable Care Negligence law rests on the premise that members of society normally should
behave in ways that avoid the creation of unreasonable risks of harm to others. As a general rule,
therefore, negligence law contemplates that each person must act as a reasonable person of ordinary
prudence would have acted under the same or similar circumstances. This standard for assessing
conduct is often called either the “reasonable person” test or the “reasonable care” standard. In most
cases, the duty to exercise reasonable care serves as the relevant duty for purposes of a negligence
LO7-
3
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claim’s first element. The second element—breach of duty—requires the plaintiff to establish that the
defendant failed to act as a reasonable person would have acted. Negligence law’s focus on
reasonableness of behavior leads to a broad range of applications in everyday personal life (e.g., a
person’s negligent driving of a car) and in business and professional contexts (e.g., an employer’s
negligent hiring of a certain employee, or an accountant’s, attorney’s, or physician’s negligent
performance of professional obligations).
Recent years have witnessed attempts to extend negligence principles to contexts not previously
explored in litigation. For instance, in a case that was ongoing as this book went to press, numerous
former National Football League (NFL) players sued the NFL for alleged failures to disclose the full
extent of the long-term health risks posed by concussions (particularly of the repeated variety) and for
alleged failures to develop appropriate protocols that would guard against players being put back on the
field too soon after a head injury. Negligence was among the legal theories being invoked by the
plaintiffs. As the deadline for this book approached, the players and the NFL were negotiating a possible
settlement in which the NFL would, among other things, agree to set up a very large fund against which
the ex-players could make claims.
Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of
reasonable care.
Was the Duty Owed? Of course, there could not have been a breach of duty if the defendant did not owe
the plaintiff a duty in the first place. It therefore becomes important, before we look further at how the
reasonable person test is applied, to consider the ways in which courts determine whether the defendant
owed the plaintiff a duty of reasonable care.

LAW 531 Week 2

Courts typically hold that the defendant owed the plaintiff a duty of reasonable care if the plaintiff
was among those who would foreseeably be at risk of harm stemming from the defendant’s activities or
conduct, or if a special relationship logically calling for such a duty existed between the parties. Most
courts today broadly define the group of foreseeable “victims” of a defendant’s activities or conduct. As
a result, a duty of reasonable care is held to run from the defendant to the plaintiff in a high percentage
of negligence cases—meaning that the outcome of the case will hinge on whether the defendant
breached the duty or on whether the requisite causation link between the defendant’s breach and the
plaintiff’s injury is established.
In Shafer v. TNT Well Service, Inc., which follows, the court considers whether to recognize a duty on
the part of an employer to exercise reasonable care in supervising employees and in permitting particular
employees to use company vehicles. In addition, Shafer touches on other possible grounds on which an
employer may sometimes be held liable when an employee’s actions cause harm to a third party.
Shafer v. TNT Well Service, Inc. 285 P.3d 958 (Wyo. Sup. Ct. 2012)
In early 2008, TNT Well Service, Inc. hired Melvin Clyde as a rig operator. Clyde’s duties
called for him to travel to various well sites within approximately 100 miles of Gillette, Wyoming.
TNT provided Clyde with a company-owned pickup, which he used not only for work-related
purposes but also to travel to and from his home in Upton, Wyoming.
On February 12, 2009, at approximately 5:30 p.m., Clyde was driving toward Newcastle,
Wyoming in the TNT pickup when it crossed the highway’s center line and collided head-on with a
tractor-trailer driven by Rodney Shafer (the tractor-trailer’s owner). Clyde was pronounced dead
at the scene. A post-accident blood test revealed the presence of controlled substances in his
blood. Shafer was injured in the collision, and his tractor-trailer was damaged beyond repair.
Shafer and his wife, Brenda, sued TNT in a Wyoming district court on three theories: (1) that
TNT was vicariously liable for Clyde’s negligence under the doctrine of respondeat superior; (2)
that TNT negligently supervised Clyde; and (3) that TNT negligently entrusted a company vehicle
to Clyde. Following discovery, TNT moved for summary judgment. In that motion, TNT asserted
that Clyde was not employed by TNT at the time of the accident because his employment had been
terminated at least an hour earlier. TNT also contended that it could not be held vicariously liable
because Clyde was not acting within the scope of his employment at the time of the accident.
The district court granted summary judgment in TNT’s favor on all of the Shafers’ claims. With
regard to the respondeat superior claim, the court concluded that Clyde’s employment had been
terminated prior to the accident and held that there was no genuine issue regarding this key fact.
Additionally, after finding that Clyde “was traveling in a direction in which his employer
conducted no business, outside of working hours, on a day he had been absent from work and after
he had been informed someone from the company was coming to collect the truck and he was to
leave the truck in Upton,” the court held that “even if an employer-employee relationship had
existed . . . at the time of the accident, the undisputed facts would lead to only one reasonable

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