UCLA Business Law Negligence and Strict Liability Paper

Conclusion/Recommendation
•
MUST be based
on
your prior analysis
•Brief
•CONCISE

Both negligence and strict liability are the two major legal lawsuits that are within this case. First, in order to properly evaluate this case and the potential applicable legal concepts, we must first look at the elements that must be proven which are needed to win a negligence case which the courts in Fern A. Fogel V. Get ‘N Go Markets, Inc. as, “(1) that a duty was owed to the plaintiff; (2) that defendant breached that duty; (3) that the breach, actually (in fact) and legally (proximately) caused; (4) plaintiff to suffer damage.” To elucidate on this meaning, we will effectively show all the elements by analyzing the strengths for both sides, of the plaintiff and the defendant, to prove the strength of the case. All of the major elements within this negligence claim are easily arguable and in the favor of Carter which will be proven through proper analysis by our legal team.

When we are evaluating the first concept of negligence, we must prove all three elements of there being a duty that is owed to Carter by Bailey which are broken into three parts as, (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns. The existence of any one of these factors is sufficient for a court to impose a duty, defined by Northern Gould Public Service Co. v. Patil, 1 Gou.3d 462, 466 (Gou. 2000). The nature of the relationship between Carter and Bailey is both of them, being legal drivers who are expected to act a certain way while driving a vehicle. Because Bailey is expected to act as any reasonable person would on the road, this proves that there does not need to be an alliance with each other regarding a relationship. A possible argument that Bailey could have against the nature of the relationship would be that Bailey does have a relationship with other drivers, as she could only worry about her own safety concerns. The foreseeability is easily justified on Carter’s behalf because it was up to the discretion of Bailey to wear flip flops while driving, therefore endangering those lives of others. A potential argument that Bailey could argue against the foreseeability of harm could be that she believed that wearing flip flops while driving could not determine any foreseen harm. There are no public policies that prohibit drivers from the selection of footwear they chose while driving, meaning that Bailey has a very strong argument against analyzing a public policy because there is none.

The second element of negligence that must be proven within the court is proving that bailey indeed did breach the duty that she owed to you as a driver and this is proved by defining that breach of duty as, “(1)the probability of the accident’s occurring; (2) the magnitude or gravity of the injury suffered by the plaintiff if an accident occurs; and (3) the burden placed on the defendant to take adequate precautions to avert the accident.” Judge Learned Hand, in the case of United States v. Carroll Towing Co., 159 F.2d 169 (Second Circuit, 1947). Wearing flip flops, sandals, or any open toed shoes while driving is a strong argument because that is indeed a breach of duty that Bailey owed while driving a vehicle. Wearing sandals can lead to a distraction when driving because it withdraws the attention from the road to worrying about the potential risks that may arise if it gets stuck, endangering the lives of those around her. Bailey will have a difficult time arguing against the breach of the duty that she owes while driving, because she cannot properly prove that she did not breach her duty as she wore sandals that can pose a potential danger to those around her without admonishing them of that danger.

Causation is often broken into two separate parts, which is actual and proximate, but one of the primary focuses we are having our attention towards is the actual cause of the breach that was done by Bailey’s act. Causation must be proven by “determine whether the defendant’s negligence has caused plaintiff’s injuries, the plaintiff must demonstrate that but for the defendant’s negligence, the plaintiff would not have sustained the loss.” (Curtis B. Wiley V. Peat Young & Company) The actual cause of the damages that arises from Bailey’s negligence is easily provable and you will have a strong argument for, because of flip flop getting lodged under the pedal which further caused the accident to happen. The reason that you have a strong argument with proving actual cause of Bailey’s negligence is because of having a “But for” test to prove that if it was not for Bailey’s negligence you would have not sustained the damages that were caused. When we analyze the actual cause from Bailey’s side, there is an extremely low chance of her having an argument to win because indeed her negligence caused the damages.

Damages, within a negligence case, are more than injuries and this is the last piece of negligence that we can easily win for because of how much damage has been done in order to determine any compensation. Lastly, the plaintiff must demonstrate that Carter sustained actual loss or damage resulting from the professional negligence.” (Curtis B. Wiley V. Peat Young & Company) Due to the damages that was caused by Bailey we will illustrate to Carter, that all of the economic damages that were additional to the physical damages that were done to his body. Carter still had 12 more years until you were able to retire, meaning that Carter is able to be compensated for both punitive and compensatory damages for what you are losing because of Bailey’s negligence. Bailey does not have an argument of not proving that there were no damages, because we already proved, because of the “But for” test, that there are indeed damages that occurred, as stated before both physical and economical. (THIS IS THE LEGAL ANALYSIS)

As it’s been stated before, Zoe Bailey was heading home in her car, she was driving at normal speed but while driving she was wearing a new pair of Bianca Claudio designer flip flops. as she stepped on the gas pedal, one of the flip flops slipped off her foot and became lodged under the pedal. Car started going really fast and she lost control of the vehicle. She cut the yellow lines and got into an accident with Ronald Carter. Carter will not be able to walk again.

BIanca Claudio could have warned his customers or at least had a label on for them to know and not use them while driving but there were no warnings at all for his customers.

The Stakeholders of this case are Zoe Bailey, Bianca Claudio and Ronald Carter and other people who were outside and other drivers as well. Claudio had two options: either sell the product and let the customers know that it can be really dangerous to drive while having his product on or sell the product without letting them know what can happen if they drive while using his product. Under the Stakeholder theory which is the greatest good to greatest number of people, Zoe could have been aware and not use those sandals while driving and not put his or someone’s else life at risk, Claudio could have been protected from upcoming issues like this no one will not blame him for not warning, and at the end all the other people outside and other drivers included Ronald Carter could safely get home and not be part of the accident. Under Rights theory which is protecting individual rights it was Zoe Bailey’s right to know what can cause flip flops if she will use them while driving.

The second choice under the Categorical imperative which is what if everyone took such an action, l many people will use flip flops while driving and cause so many accidents and injuries to others and to themselves. Also under the justice theory which can harm to the individual be justified, this will not be ethical just because it can’t be justified, and the provider of these flip flops could have saved many lives with just one warning.

He chose not to send any warning to his customers and his choice was not ethical because that big accident occured and MR. Carter will not be able to walk anymore and Zoe is the one who causes him that. Option one is more effective in this case as MR. Claudio could have success in his business if he will send a warning to his customers about what can happen if they will use his product. At the same time Zoe and Claudio will not have an accident. (THIS IS THE ETHICAL ANALYSIS)

SLIPPERY SLOPE
It was one of those “dog days” of the summer of 2009 in the Dream Valley. Temperatures had
been in the low 100 degrees Fahrenheit for the last two weeks. Zoe Bailey was at the end of her
rope coping with the heat. Over the hill at the local State Beaches, the daily temperatures for the
last two weeks had been at least 20 degrees cooler than in the Valley. Bailey decided to spend
the day at Pacific Beach to enjoy the cooler weather and impress other beachgoers with her new
slim figure. For the last several months, Bailey had been eating healthy and exercising daily. In
addition, she was eager to show off a stunning yellow polka dot bikini by Camellia Swimwear and
a new pair of Bianca Claudio designer flip-flops that she had just purchased from the Bianca
Claudio Store during a recent visit to the local mall.
The weather at the beach was just as expected. The skies were a fantastic shade of periwinkle
blue. There was not a trace of pollution in the air; the beach was free of debris; and the coliform
content of the ocean water was within acceptable levels. As she lay on the sand, absorbing the
warmth of the sun, she could smell the wonderful aromas of freshly made buttered popcorn and
cotton candy wafting from the nearby concessions on Pacific Pier. Bailey could not help but think
that life was good here in paradise.
At day’s end, Bailey was on an emotional high. She was feeling as good as she had felt in
months. She decided to head for home. Bailey had driven to the beach in her new 2009 BMW 4
Series Convertible sports car. Now, with the top down, Bailey drove along the coast highway on
her way to the canyon road that would take her over the hills and back into the Valley. While
waiting at a stoplight, Bailey was conscious of the stares from occupants of the other vehicles
also waiting at the stoplight. Flattered by the stares and hoping to impress all who could see, she
stepped on the accelerator and started to drive through the intersection at normal speed.
However, as she stepped on the gas pedal, one of the flip-flops Bailey was wearing slipped off
her foot and became lodged under the pedal. The automobile continued to accelerate but at a
very rapid rate. Within moments, Bailey lost control of the vehicle. In the process, her car
crossed the double yellow line and into oncoming traffic colliding head-on into a car driven by
Ronald Carter.
As a consequence of the accident, Carter suffered a spinal cord injury resulting in his becoming a
quadriplegic. Carter’s medical condition is such that he is unable to ever work again. At the time
of his injury: Carter was 53 years of age; his life expectancy was 77 years of age; he would have
been expected to retire at the age of 65; he was an employee of the United States Postal Service
covered by a union contract projecting his wages to rise by 3% per year in real terms plus an
annual Cost of Living Adjustment (COLA) equal to the rate of inflation; and his then current
annual gross salary was $48,000.
Carter and Bailey have each retained legal counsel to represent them in resolving liability issues
that have arisen as a result of the unfortunate circumstances in this case. Carter has retained
Ms. Julia Spring and Bailey has retained Mr. Leon Luu.
Required
In preparing for a meeting with Carter, Ms. Spring has asked your group to evaluate Carter’s
case. She is particularly interested in the strengths and weaknesses that exist in any lawsuit(s)
that might be filed on behalf of Carter. Ms. Spring is also interested in the relevance of the
information contained in Table 1 and Table 2 below.
Also, in preparing for the meeting with Carter and Ms. Spring, your team may want to review the
following: the Friendly Notes article and the Fogel, Wayans and O’Hare cases contained in the
“Slippery Slope – Case Library;” business law LDC concepts 2, 4, and 9; financial accounting LDC
concept 7, macroeconomics LDC concept 1; statistics LDC concepts 1, 4, and 7.
Table 1: Government Survey Data
Year
1
2
3
4
5
6
7
8
9
10
Difference in Accident Rates =
Flip Flops – Other Footwear
4%
5%
3%
4%
6%
5%
7%
8%
7%
9%
Table 2: Year-End Consumer Price Index (CPI) for the Years 1999 to 2008
Year
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
Year-End
CPI Value
148.2
152.4
156.6
162.5
166.2
169.8
176.0
183.1
192.6
199.0
SLIPPERY SLOPE LIBRARY
MAGAZINE ARTICLE
FASHION
The Flip-Flop Craze
Friendly Notes
January 2009
Today, it seems that everyone is wearing flipflops. Once consigned to the beach or the
locker room, in the last few years flip-flops
seem to have become the footwear of choice
for an entire generation. Flip-flops have
moved from merely being comfortable
footwear for the beach during the summer
months to everyday wear.
They have
evolved from simple $5 dime and drugstore
apparel to $500 designer “knock-ups;” from
no-name to big name designers, including:
Havaianas, Beverly Feldman, Prada, Bianca
Claudio, Ferragamo, and Fontz de Leon; and
from strictly apparel for play to being
acceptable at work and formal social settings.
“There’s a real craze for flip-flops right now,”
says Ron Walko, vice president of marketing
at Bianca Claudio Footwear, “our sales have
tripled in the last two years.”
Despite the increased popularity and
apparent widespread acceptance of this foot
fashion, some are expressing health and
safety concerns stemming from wearing this
type of footwear. From a health perspective,
podiatrists are concerned because of the lack
of support to the bottom of the feet when
wearing flip-flops. Because of the absence of
support the foot lacks stability, leading to
sprains, breaks and falls. In addition, the thin
soles provide no shock-absorbing qualities to
feet and legs placing strain on the arch,
ankle, hips and lower back. Podiatrists
suggest that flip-flops should be worn only for
short periods of time and not as primary
footwear.
In a recent study presented at the annual
meeting of the American College of Sports
Medicine, researchers at Auburn University
found that flip-flops actually alter the way
wearers walk. That change in gait can cause
persistent foot and ankle pain. Researchers
also found that flip-flop wearers take shorter
steps, resulting in more stress on the body
because you have to move more to go the
same distance as people wearing other kinds
of shoes. According to Dr. Anthony Sanchez
of the University of Texas, “that leads to a
higher risk of muscle and joint pain in the
legs, along with tenderness in your toes due
to the constant pressure due to “scrunching”
your toes tightly to keep the flip-flop on your
foot.”
Flip-flops may also not be the best choice for
safety reasons. Regular wearers of flip-flops
often find that they are awkward footwear for
climbing steps, running, or doing anything
else in which the use of one’s feet are
involved. Last summer, a woman wearing
flip-flops while shopping at the Mall of
America in Minneapolis single-handedly shut
down an escalator when one of her flip-flops
became lodged in a moving step. A man in
Atlanta crashed into a storefront window
when he lost control of his bicycle while
wearing flip-flops. One of the flip-flops he
was wearing had slipped off his foot and
jammed up the bike chain.
Automobile safety experts warn that driving in
loose-fitting footwear is dangerous because
the sole can easily get caught under the
brake, clutch or accelerator pedal resulting in
a fatal accident. A poll by the insurer
Eastwich Union appears to confirm these
warnings. A survey of 1,000 drivers found
that a quarter of the drivers indicated that
they regularly drive wearing flip-flops. In
addition, nearly three-quarters of the
motorists surveyed admitted that they found
it difficult to drive when wearing flip-flops.
“Being in control of your car when driving is
essential. However, many of us are ignoring
safety advice when it comes to the shoes we
wear when driving,” said Richard Ponce,
motor marketing manager at Eastwich Union.
He added that “footwear such as flip-flops are
dangerous as the sole can get caught under
a pedal during a simple gear change, when
applying the brake or accelerator, or even
when simply moving the foot from a pedal to
another. The absence of ankle support can
lead to the foot slipping off the pedal
altogether.”
Wearing shoes suitable for
driving, without question, is an important part
of safe driving.
Flip-flops may be the signature statement of
a new generation, but they may not be
sensible shoes for all occasions.
Dr.
Sanchez summed it up best when he added:
“Just because something’s fashionable
doesn’t mean it’s practical or safe for that
matter.
FERN A. FOGEL, Appellee-Plaintiff, vs. GET ‘N GO MARKETS, INC., Appellant-Defendant
COURT OF APPEALS OF GOULD, FIRST DISTRICT70 Gou.App.3d 1048, 23 P.3d 1480
July 4, 2006, Decided
PRIOR HISTORY: APPEAL FROM THE VANDENBURGH SUPERIOR COURT. The Honorable
Minerva McGonagal, Judge.
DISPOSITION: Affirmed.
JUDGES: RAVENCLAW, Judge. HUFFLEPUFF, J., and SLYTHERIN, J., concur.
OPINION BY: RAVENCLAW
OPINION:
Get ‘n Go Markets, Inc. appeals the trial court judge’s denial of its motion for a directed verdict and
motion for judgment n.o.v. We affirm.
Issues
The dispositive issue to our review of this appeal is whether Get ‘n Go Markets, Inc. owed a duty
to Fogel and if so, whether that duty was breached.
Facts
On the morning of April 1, 2000, Fern A. Fogel received extensive lacerations as the result of
walking into and through a large glass panel which formed the front of the building in which Get ‘n
Go Markets, Inc., operated a supermarket. Fogel sued Get ‘n Go Markets for damages in the Gould
state court where the cause was tried and a jury verdict rendered in favor of plaintiff. Defendant
filed a motion for a directed verdict at the close of all the evidence, and also filed a motion for
judgment n.o.v.
At this point and before proceeding to consideration of the issues presented by this appeal, we
indulge in a resume of the pertinent facts. Get ‘n Go Market is a self-service grocery store in
Johnson County, Gould. The building faces east, and the front or east portion thereof is constructed
of four transparent plate glass panels, each about ten feet square. The two center panels were in
fact sliding doors but were no different in appearance from the two stationary panels. The sliding
doors were closed on the morning in question. The only other front entrance to the store was
through a door located in the north portion of the front of the building. This door was perpendicular
to the glass front and was behind a brick wall which ran parallel to the front of the store and
extended out in front of the door approximately one foot. A soft drink vending machine was also in
front of the north door, and the wall and vending machine caused the north door to be hidden from
the view of a person approaching the front of the building, until the person was approximately six
feet from the glass front. There were no signs or markings of any kind on the glass panels on the
morning of the litigated occurrence and the glass was spotlessly clean. Plaintiff stopped her
automobile with the front facing the vending machine. She got out of the automobile eighteen or
twenty feet from the front of the store and proceeded toward the building intending to enter the
store not to make a purchase but to use its restroom facilities. From the testimony, the jury was
warranted in finding that as plaintiff approached the store she was walking at a normal gait and
with her head up; that although she was looking ahead, she did not see the glass or its bordering
metal frame and saw no reflections from lights or identifying marks of any kind on the glass. She
did not realize until she crashed through the glass, that what she thought was the entrance to the
store was in fact a solid plate glass panel. Defendant assets that plaintiff failed to make a
submissible case and that the court erred in failing to grant its motion for a directed verdict and
motion for judgment n.o.v.
In order to prevail in a claim for negligence,
the plaintiff must establish several points,
referred to in the law as a prima facie case.
The prima facie case for negligence requires
that the plaintiff prove: (1) that a duty was
owed to the plaintiff; (2) that defendant
breached that duty; (3) that the breach
actually (in fact) and legally (proximately)
caused; (4) plaintiff to suffer damage.
Defendant contends that under all of the
evidence favorable to plaintiff and giving to
plaintiff the benefit of all reasonable
inferences, it conclusively appears that
defendant did not owe a duty to plaintiff since
the evidence is clear that the plaintiff was
merely on the premises for the sole purpose
of using the defendant’s restroom facilities
and not to purchase any item(s) from the
store. In addition, defendant contends that a
sign was posted on the door of both the
men’s and women’s restroom conspicuously
stating
“RESTROOM
FACILITIES
RESTRICTED TO USE BY PATRONS
ONLY.” The defendant further contends that
if a duty was owed, defendant did not breach
that duty; that defendant was not guilty of any
actionable negligence, and the issue of
liability should not have been presented to
the jury.
A. DUTY
We first address the argument that no duty
was owed to the plaintiff. In our state the
question of the existence of a duty is one for
the court to determine. In making that
determination Gould courts analyze three
factors in determining whether to impose a
duty at common law: (1) the relationship
between the parties, (2) the reasonable
foreseeability of harm to the person injured,
and (3) public policy concerns.
The
existence of any one of these factors is
sufficient for a court to impose a duty.
Northern Gould Public Service Co. v. Patil, 1
Gou.3d 462, 466 (Gou. 2000). We consider
each of these factors in turn.
1. THE RELATIONSHIP BETWEEN THE PLAINTIFF
AND DEFENDANT
The defendant contends that there was no
relationship between it and the plaintiff in as
much as the plaintiff was not a customer nor
prospective customer but was a trespasser.
The evidence is undisputed that the sole
purpose for plaintiff’s intent to enter upon
defendant’s premises was to use the
restroom facilities.
A duty of reasonable care is “not, of course,
owed to the world at large,” but generally
arises out of a relationship between the
parties.” Seamus v. Lavender, 104 Gou.2d
929, 931 (Gou. 1991). Fogel was not a
customer of Get ‘n Go and there is no direct
contractual relationship between Fogel and
Get ‘n Go. However, the absence of a direct
contractual relationship does not mean that
no duty exists.
2. THE REASONABLE FORESEEABILITY OF HARM
TO THE PLAINTIFF
The most important of these considerations
in establishing duty is foreseeability of harm
to the plaintiff. As a general principal, a
“defendant owes a duty of care to all persons
who are foreseeably endangered by his
conduct, with respect to all risks which make
the conduct unreasonably dangerous.”
(citation omitted). In the instant case patrons
of the store are clearly foreseeable. In
addition, defendants posting of the sign on
the restroom doors restricting use to
“PATRONS ONLY” clearly demonstrates that
plaintiff’s presence on the property was
foreseeable. Otherwise, what purpose of the
defendant is to be served by the posting of
such a notice?
The designation of an individual as a
business
“invitee”
or
“licensee”
or
“trespasser” was abolished by our Supreme
Court in the case of Rowling v. Christianson,
120 Gou. 2d 180 (1998). Thus, the existence
or non-existence of the duty imposed on the
proprietor of a business establishment
toward individuals who may come upon his
premises is not contingent on whether the
individual is classified as an invitee, licensee
or trespasser. Following Rowling, a business
proprietor is under a duty to use due care to
keep in a reasonably safe condition the
premises where individuals may be expected
to come and go; if there is a dangerous place
on the premises, the business owner must
safeguard those who come thereon by
warning them of the condition and risk
involved. “The true ground of liability is the
proprietor’s superior knowledge of the
dangerous condition over individuals who
may come upon the property and his failure
to give warning of the risk.” Id. at 187.
3. PUBLIC POLICY CONCERNS
There are numerous points that are
considered in the area of public policy
concerns. Among the points are: the moral
blame attached to the defendant’s conduct;
the extent of the burden to the defendant and
consequences to the community of imposing
a duty to exercise care with resulting liability
for breach, the policy of preventing future
harm; and the availability, cost and
prevalence of insurance for the risk involved.
Although a business owner is not an insurer
against all accidents that may befall him upon
the premises, in the instant case we believe
that the burden placed upon the defendant by
imposing a duty to exercise care is slight. In
addition, we believe that the policy of
preventing future harm and the availability of
insurance to cover the risk involved in this
case require a finding that Get ‘n Go owed a
duty to Fogel. The trial court was not in error
in instructing the jury as to that point.
B. BREACH OF DUTY
Defendant argues that even if this court were
to find that defendant owed a duty to Fogel it
nevertheless is not liable for Fogel’s injuries
because it did not breach that duty.
Courts approach the question of breach of
duty in several ways.
However, these
various approaches generally attempt to
measure three things: (1) the probability of
the accident’s occurring; (2) the magnitude or
gravity of the injury suffered by the plaintiff if
an accident occurs; and (3) the burden
placed on the defendant to take adequate
precautions to avert the accident. Judge
Learned Hand, in the case of United States v.
Carroll Towing Co., 159 F.2d 169 (Second
Circuit, 1947), attempted to give content to a
relatively simple concept of determining
whether a defendant had breach a duty failed to exercise ordinary care- owed to the
plaintiff. Hand’s attempt to explain the notion
of ordinary care using these three criteria was
stated “in algebraic terms: if the probability be
called P; the injury, L; and the burden, B;
liability depends upon whether B is less than
L multiplied by P: i.e., whether B < PL.” In economic terms multiplying the cost of an accident if it occurs by the probability of its occurrence provides a measure of the benefit than can be anticipated from incurring the costs necessary to prevent the accident (the benefit of not having to pay out tort damages outweigh the costs incurred to prevent the accident from occurring). The cost of prevention is what Hand meant by the “burden of adequate precautions” against the accident. It may be the cost of making the activity safer, or the benefit forgone by curtailing or eliminating the activity. If the cost of safety measures or curtailment whichever cost is lower - exceeds the benefit in accident avoidance to be gained by incurring that cost, an enterprise would be better off, in economic terms, to forgo accident prevention. A rule making the enterprise liable for the accidents that occur in such cases cannot be justified on the ground that it will induce the enterprise to increase the safety of its operations. When the cost of accidents is less than the cost of prevention, a rational profit-maximizing enterprise will pay tort judgments to the accident victims rather than incur the larger cost of avoiding liability. If, on the other hand, the benefits in accident avoidance exceed the costs of prevention, the enterprise is better off if those costs are incurred and the accident averted, and thus the enterprise is made liable, in the expectation that selfinterest will lead it to adopt the precautions in order to avoid a greater cost in tort judgments. It is important to note that Hand’s evaluation of the breach of duty in algebraic terms was not intended to convey the notion that the three factors are easily quantifiable and produce precise results. What can be said about the process is this: as the probability for injury and or the severity of the injury increases, the burden imposed or the cost that must be incurred by the defendant, to avoid being deemed as having breached a duty owed to the plaintiff, also increases. 1. PROBABILITY OCCURRING OF THE ACCIDENT Apparently, the Gould Supreme Court has not had occasion to deal with a plate glass case, but other jurisdictions have. Cases where plaintiff recovered for injuries resulting from contact with plate glass walls or doors are numerous (citations omitted). In addition, the question of liability for injuries resulting from contact with plate glass walls or doors is the subject of an Annotation in the American Law Reports (citation omitted). Here, plaintiff, a citizen of our neighboring state of Grace returning home from a vacation, was a complete stranger to the defendant's premises and had never seen the market before. The invisibility of transparent glass, by its very nature, is likely to deceive the most prudent person, particularly where, as here, the construction was designed to give the market an open front appearance. Furthermore, as noted the north entrance door was obscured from view by the wall and vending machine and was not readily discernible until one approaching the glass front was within six feet thereof. The jury was not required to speculate as to the dangerous and unsafe condition created by the glass front. There was evidence to that effect. A former employee of defendant testified that during a period of eight months he observed four or five persons come in contact with the glass front and 'bounce off'. A safety engineer testified it was a hazardous arrangement, and detailed the methods that could have been employed to correct the lack of visibility of the glass. 2. THE MAGNITUDE OF INJURY There is little doubt that one may suffer injury from accidental contact with a plate glass wall or door. The extent of that injury may certainly vary in range from no injury at all to slight to moderate to severe life threatening injury and even death. Our prior reference to cases where plaintiff recovered for injuries resulting from contact with plate glass walls or doors cases or recovery and the American Law Reports on the subject confirm this belief. 3. THE PRECAUTIONS BURDEN OF ADEQUATE To be sure, transparent plate glass is recognized as a suitable and safe material for use in construction of buildings, indeed, it is common knowledge that such glass is used rather extensively in commercial buildings. However, it seems to us that the number of reported cases, some of which are cited infra, involving personal injuries from bodily contact with transparent glass doors and walls is some indication that with the advantages that may be derived from such construction are concomitant risks which the proprietor must assume. However, in the present case, the danger incident to the use of transparent plate glass may be significantly lessened by the placement of a sticker on the glass that would alert individuals to the presence of the glass. Interference with the architectural aesthetics of construction using transparent plate glass is so slight that it is outweighed by the danger to be anticipated from a failure to use it. Thus, given the relatively high probability of injury and the significant severity of that injury when compared to the nominal cost to the defendant of adequate precautions to prevent the injury, we find no error in the jury’s conclusion that Get ‘n Go breached the duty it owed to Fogel. Without further discussion, we conclude and hold that there was substantial evidence from which the jury could find: (1) that the glass front constituted a dangerous and unsafe condition; (2) that plaintiff was exercising ordinary care for his own safety; (3) that there was a duty on the part of defendant to warn its patrons of the condition and (4) that defendant breached its duty. The judgment is affirmed. GLENN WAYANS, Plaintiff/Appellee v. ALBERT LANDON, Defendant, and BLACK & DECKER CORPORATION, Defendant/Appellant Supreme Court of the State of Gould 35 Gou.3d. 1492, 895 P.2d 718 (1995) May 1, 1995, Decided. HUNTLEY, Associate Justice. This is an appeal from the Order of the Superior Court of Cronkite County of October 10, 1994 denying the defendant Black & Decker Corporation’s motions for judgment notwithstanding the verdict and for a new trial. I. Facts The critical facts are not in dispute. On March 15, 1994, Albert Landon purchased a new Lawn Wizard lawn mower from Sears, Roebuck & Co. Sears, Roebuck is not a party to this dispute. The mower was manufactured by Black & Decker Corporation, a manufacturer of consumer power tools, hardware, and home improvement products. On the morning of March 21, 1995, Landon was using the mower to mow the front lawn of his home as Wayans was walking on the sidewalk abutting Landon’s front lawn. Suddenly, while he was passing approximately 15 feet from Wayans, Landon heard a “click” sound and turned to see Wayans cry out and put his hand over his eye. Landon immediately called for emergency medical assistance. Subsequently, Landon and the emergency personnel discovered that Wayans had been struck in the eye by a small plastic toy soldier that belonged to Landon’s son. Apparently, the toy had been left on the lawn by Landon’s son and had not been removed before Landon began mowing the lawn. When the mower passed over the toy, it was picked up and ejected it at high velocity, blinding Wayans’ right eye. The parties have stipulated that there was no warning as to the risk of such an injury included in the owner’s manual. Wayans filed suit against Landon and Black & Decker, asserting a claim for negligence against Landon and a claim in strict tort liability against Black & Decker, asserting that the mower was unreasonably dangerous on the basis that Black & Decker failed to provide warnings to purchasers as to the risk of injury from small objects that might be ejected from under the mower. Following trial, the jury returned a verdict in favor of Wayans and against Landon and Black & Decker. Defendant Black & Decker filed motions for judgment notwithstanding the verdict and for a new trial. Judge Edward Murrow issued an order denying those motion and defendant appealed. The Court of Appeals affirmed and we granted review upon defendant’s petition. As to Black & Decker, at trial plaintiff asserted that the mower was unreasonably dangerous on the grounds that defendant failed to warn that it was capable of randomly discharging foreign objects. The defendant responded by presenting evidence, and arguing, that the conduct of co-defendant Adam Landon constituted the sole cause of plaintiff’s injury. The defendant also presented expert opinion evidence that the failure to warn of a readily observable danger was not unreasonably dangerous. The jury entered a verdict in favor the plaintiff in the amount of $1.1 million. Both defendants filed motions for a judgment notwithstanding the verdict and for a new trial. Judge Murrow issued orders denying the motions of both defendants. Defendant Black & Decker appealed to the Court of Appeals, which affirmed, and we granted review upon petition. II. Applicable Law Plaintiff’s claim is grounded in strict tort liability. As distinguished from negligence, which involves a failure to exercise reasonable care, strict liability does not require proof of intent, carelessness, recklessness, or any other fault. In the context of strict liability claims involving injuries from defective products, we have adopted section 402A of the Restatement (Second) of Torts, which states: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. The unreasonable dangerous condition must have caused the plaintiff’s injury or damage. A seller’s liability for personal injury or property damage caused by defective products extends not only to the “ultimate user or consumer,” but also to bystanders and others who are injured by the product. See William L. Prosser, The Fall of the Citadel, 50 MINN. L. REV. 791 (1966). Unlike negligence, strict liability does not require proof of a breach of the duty of care. Among the justifications for imposing strict liability without proof of negligence on the manufacturers and sellers of products is that consumers are less able to inspect products and determine their safety. Thus, “public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained ... .” Restatement (Second) of Torts § 402A, cmt. c (1965). The cost of injuries caused by defective products is imposed on manufacturers and sellers since they can spread the cost of insurance on to all consumers in the prices charged for their products. Therefore, strict liability for defective products may result even though the seller has exercised all possible care in the preparation and sale of his product ... .” Restatement (Second) of Torts § 402(A)(2)(a) (1965). For an injured plaintiff to recover in strict liability, the injury must result from a defective condition of the product, the condition must be unreasonably dangerous, and the condition must have existed at the time the product left the manufacturer’s control. A product is defective if it contains some flaw or deficiency that renders it unreasonably dangerous. The defect may arise from faulty manufacturing or design of the product, or through a failure to warn of a potential danger associated with the product. A manufacturing defect occurs when a product is imperfectly built or assembled. Examples include a bottle of soda pop containing a shard of glass or an electrical saw with missing bolts. A design defect results when an entire product line contains some harmful imperfection or shortcoming making those products hazardous in their normal use. For instance, an automobile that is prone to catch fire on impact or a farm tractor that easily tips over on uneven ground. Finally, a failure to warn defect arises where the manufacturer has failed to alert the user of a risk of potential harm in using the product where the danger is not reasonably observable by the user. For example, a failure to warn of the potential side effects of a drug or a failure to warn that a cleaning product might cause severe skin irritation. The purpose of a warning is to draw a reasonably prudent person’s attention to a danger in using a product and how to avoid it. Strict liability attaches “only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” Restatement (Second) of Torts § 402A, cmt. g (1965). Whether a failure to warn amounts to an unreasonably dangerous defect turns on whether the product is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) of Torts § 402A, cmt. i (1965). Accordingly, we must consider the reasonable expectations of the ordinary consumer as to the danger involved in using the product in the absence of adequate warnings for safe use. With these principles in mind, we turn to the case at hand. III. Analysis The defendant contends that it was not obligated to furnish a warning to the plaintiff of the hazard to himself or others from passing the mower over small foreign objects while in use. In support of this assertion, the defendant argues that it offered for sale an attachable refuse bag to collect grass cuttings during operation of the mower, and that this, combined with the easily observable fact that grass is cut by a high speed rotary blade and that the cuttings are discharged from side of the mower was sufficient to warn of the danger. We note that the bag was not sold together with the mower and plaintiff did not purchase it as a separate item. In making this argument, defendant seeks to subtly shift the blame to the plaintiff for failure to observe the obvious and reduce the risk by purchasing and using the refuse bag. We disagree. As the manufacturer, Black & Decker was in the best position to test and ascertain the various hazards posed in using its product. Indeed, its own witnesses at trial admitted that they were aware that the mower could pick up and expel stones, twigs, or other small objects, at high velocity while in operation. Additional evidence demonstrated that the attachment of a refuse bag to the mower served the dual purposes of collecting grass cuttings and preventing grass and other matter from being discharged from under the mower. Black & Decker should have alerted the users of its product of the danger of which it was aware. Its failure to do so was a defect that made use of the product potentially dangerous to the user as well as bystanders. The purpose of strict liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. The plaintiff, a passerby innocent to the risk of severe harm, is such a person. IV. Conclusion We find no error in the trial court’s denial of defendant’s motions. Accordingly, the judgment is affirmed. Dissenting Opinion BRINKLEY, Chief Justice, dissenting. Failure to warn of known or knowable dangers in a product renders it unreasonably dangerous. See Restatement (Second) of Torts 402A cmt. j (duty to warn where the seller “has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the ... danger”). Nevertheless, strict liability is not absolute liability, and a manufacturer is not an absolute insurer who is responsible for all harm that may occur in using the product. The more difficult issue is where to draw line between compensating injured consumers and users of defective products and saddling manufacturers and sellers with the costly burden of being absolute insurers of the safety of their products. This is where the manufacturer’s knowledge of the danger comes into play. Holding a manufacturer liable for failure to warn of a danger of which it was impossible to know or detect would transform the manufacturer into an insurer of the product, and impose absolute rather than strict liability. As such, we must determine whether the manufacturer had actual or constructive knowledge of the danger, in light of product testing and scientific, technological, and other information available when the product was placed on the market. A manufacturer need not provide a warning if the state of the art or knowledge at the time the product was distributed did not indicate that a warning was necessary. On the other hand, a manufacturer is under no responsibility to warn of dangers that are generally known or obvious. A manufacturer cannot be held liable for a failure to warn of dangers that are of common knowledge to the general public. In other words, there is no liability for failure to warn when the user of the product is or should already be aware of the danger. This critical point, I believe, is what the jury and the majority overlooked. The plaintiff in this case knew or should have known that passing a motorized lawn mower over a stone or other small foreign object would be likely to propel it at high velocity from under the mower. This is particularly important where, as in this case, the plaintiff was operating the mower without a bag attached to collect grass cuttings. No specialized scientific or technical knowledge is required to understand this; it is a matter of common sense and is readily observable while operating a motorized lawn mower. The hazard was not hidden. When a danger is obvious and known to the user of the product, the failure to warn of such a danger is not a defect that renders the product unreasonably dangerous. That is precisely the reason why the defendant should not be held strictly liable for the unfortunate injuries suffered by the plaintiff. In its understandable desire to compensate the plaintiff for a terrible injury, the jury reached into the deep pockets of Black & Decker. However, the plaintiff should be limited to a recovery on his negligence claim against the co-defendant operator of the mower. For these reasons, I respectfully dissent. SCARLETT O’HARE, Plaintiff and Respondent v. WILKES EXCURSION LINES, INC., Defendant and Appellant Supreme Court of Gould 83 Gou.2d 131 (1985) OPINION HOFF, Associate Justice The Delta Queen, a one-time riverboat, was converted to a Hotel and Casino and is permanently moored at a dock on the Sacrilege River. The Delta Queen is owned and operated by Wilkes Excursion Lines, Inc. (Wilkes). On March 17, 1980, Scarlett O’Hare was coming off duty as a waitress on the Delta Queen when, in getting off the boat, she fell and sustained disabling injuries. O’Hare sued Wilkes for negligence in failing to properly maintain the disembarking ramp. Wilkes was found to be negligent and O’Hare free from contributory negligence. As part of her total damage recovery, O’Hare was awarded $48,000 for loss of future wages. Wilkes appealed the trial court decision contesting only that portion of the damages awarded for loss of future wages. On appeal to the Court of Appeal, the decision of the trial court was affirmed. We grant review to resolve matters of confusion regarding the estimation of lost future wages. The facts relevant to the determination of the loss of future wages are not in dispute. At the time of her injury, O’Hare was 58 years of age and had been in the employ of Wilkes for three years and expected to retire at age 65. Her salary, including tips, during the time she was employed by Wilkes was $4,000 per year. She received no health or retirement benefits from Wilkes. Her life expectancy is 75 years of age. At the time of the trial, O’Hare was 60 years old. Lastly, as a result of her injuries, O’Hare has been deemed to be permanently disabled and unable to work in the future. According to the trial record, the calculation of lost future earnings was based upon several factors. First, at the time of trial O’Hare was 60 years of age and was expected to live until the age of 75. The trial court judge determined, therefore that she was entitled to 15 years of lost wages or $60,000 (based on her $4,000 per year salary at the time of her injury). The $60,000 figure was reduced to a present value of $48,000 using a discount rate of 3%. There appears to be some confusion at the trial court level relating to the calculation of lost future earnings. We take this opportunity to discuss this matter in an attempt to provide some guidelines to be followed by the courts in the future. In a personal injury action the plaintiff is entitled to be compensated for monetary losses and expenses which the plaintiff has incurred and is likely to incur in the future as a result of the defendant’s negligence. Included in the recovery would be harm to the plaintiff’s earning capacity. However, recovery requires that the plaintiff establish that the defendant caused the loss. In addition, damages for harm to one’s earning capacity will not be awarded in the absence of evidence in support of the claim. See Restatement (Second) of Torts § 906 (1979). The evidence presented in support of the claim must be sufficient to establish the extent of the damages suffered and the amount of money required to adequately compensate the plaintiff. See Restatement (Second) of Torts § 912 (1979). The proof presented must establish the loss with “as much certainty as the nature of the tort and the circumstances permit.” Id. Establishing lost earnings from the time of the accrual of the cause of action to the time of judgment is generally easy. A reasonable estimation of the loss is based upon information and “historical” data that is known and requires little speculation. For example: the length of time the plaintiff has been unable to work is definite; the amount of earnings lost can be easily determined; and increases in pay that would have occurred had the plaintiff been able to work are also easy to establish. A more difficult task is encountered when the plaintiff attempts to prove the loss of income that would have been earned in the future. Establishing a loss of future earnings raises questions that are not easily answered. How long will it be before the plaintiff is able to return to work? If the plaintiff is totally disabled and will be unable to return to work, at what age would the plaintiff have retired had he or she been able to work? Is the plaintiff’s annual wage at the time of injury the starting figure in calculating the lost stream of future income? Will this figure be increased to include other factors that might contribute to a real growth in future wages? Are factors such as the plaintiff’s education, experience and background relevant? Should employer contributions to medical insurance and an annuity or pension plan be considered? Should inflation be taken into account in determining lost future earnings? If so, what is the projected rate of inflation? Should income taxes that the plaintiff would have had to pay on the future earnings had they been actually earned be subtracted from the gross amount of projected future earnings? Will the lost earnings be paid periodically or in a lump sum? If a lump-sum, should the award for future loss of earnings be reduced to the present value of the entire amount of the loss that would have been received in the future? The starting point in the determination of the amount of future earnings that will be lost by the plaintiff is the establishment of the length of time the plaintiff will be disabled. If the plaintiff is totally disabled, the age at which the plaintiff would have retired must be determined. The next step in the process is to establish the initial amount of the plaintiff’s annual salary followed by a determination as to how the annual salary is likely to change in the future. The last step is to discount the estimate to present value. There is no dispute in the record as to O’Hare’s permanent disability. Also, there is no dispute that O’Hare would have continued to work until she retired at the age of 65. At the time of trial O’Hare was 60 years old. Thus the determination of lost future earnings should have been based on a loss of future earnings for five years not 15 years. The trail court judge based the loss of future earnings on O’Hare’s life expectancy of 75 years of age rather than her retirement age. This was error. The starting figure in determining the loss of future earnings is the plaintiff’s annual salary at the time of injury. That figure, however, may be increased to reflect real wage growth, benefits, education, experience, collective bargaining agreements and societal forces “such as foreseeable productivity growth within the worker’s industry.” See, Parker v. Wheeling Steel Co., 522 F.2d 13 (1975). At trial, the plaintiff only presented evidence to establish that at the time of her injury her annual salary was $4,000. This evidence was not contested by the defendant. No other evidence was presented by the plaintiff regarding other factors that might impact her future earnings. Once the beginning figure is established the issue that must be addressed is whether that figure will be increased based upon expected inflation. Closely tied to resolving this issue is the requirement that any estimate of lost future wages must be discounted to present value. There are at least two ways to deal with inflation in estimating lost future wages. One way is to eliminate any consideration of inflation when determining the amount of lost future wages and the discount rate that will be applied to reduce the final lump sum payment to its present value. The other approach includes expected inflation in estimating the amount of lost future wages but applies a higher discount rate (which includes an anticipated inflation rate) when reducing the lump sum payment to its present value. Both approaches will essentially yield the same result. For a more thorough discussion of the two alternatives, see Alexon v. Tritt River Towing Co., 549 F.2d 63 (1977). In prior decision we have ruled that expected inflation is to be considered in estimating the amount of lost future wages with a resulting application of a higher discount rate when reducing the lump sum payment to its present value. See, Bakkee v. Tolentino Construction Co., 73 Gou.2d 1944 (1979); Carter v. Suresh, 51 Gou.2d 273 (1970). Decisions that have been rendered at the Court of Appeals have not been consistent and have not provided clear guidance for judges presiding over cases at the trial court level. [Citations omitted]. Because of that confusion the trial court judge did not consider inflation when estimating the amount of O’Hare’s lost future wages. Following our decision in the present case, there should be no confusion as to how this matter is to be resolved in the future. When expected inflation is used in estimating the amount of lost future wages, the question that is presented is what inflation rate will be used in the estimation? One method that can be applied to estimate the longterm inflation rate is to use interest rates on long-term riskless financial instruments like U.S. government bonds. Another method would be to use the year-to-year percentage change in the consumer price index as calculated by the Bureau of Labor Statistics. Either method is acceptable. Had the plaintiff not been injured and continued to work, her wages would have been diminished by state and federal income taxes. Since the damages award is tax free, the estimated lost stream of income consists “ideally of after-tax wages and benefits.” Coutee v. Shaygangfard Imports, 423 U.S. 1045 (1975). In determining O’Hare’s lost future wages, the trial court did not reduce the gross annual salary to a net amount after deducting taxes that would have been paid on the income. This should have been done. The last step in determining the lump-sum payment is the discounting of the lost stream of future income to present value. Acres v. Lenroot Development, Inc., 443 U.S. 526 (1979). The preferred method of compensating the plaintiff for loss of future income is a lump-sum payment rather than periodic payments (weekly, bi-weekly, or monthly) during the time of the disability. The lump sum payment is computed to equal the present value of the lost earnings. The concept of present value is based on the time value of money. In its simplest terms, money received today is worth more than money to be received at any time in the future. The reason for this is because money received today can be used in such a manner as to increase in value. We conclude that calculation of the damages award for lost future income was in error and must be set aside. The judgment is reversed and remanded to the trial court to resolve the issue of the lump sum payment for lost future income consistent with the directions provided in this case. DaKroob, J., Gregoria, J., Huang, J., Mora, J., Paria, J., and Thomas, C.J., concurred.