4.4 Negligence

Elements of Negligence

Negligence occurs when someone doesn’t take the proper level of care that a reasonably prudent person would in a similar situation, and this failure leads to harm. In layman’s terms, this describes an accident. The law imposes a duty of care on all of us in our everyday lives and accidents caused by negligence are actionable. Negligence is not an intentional tort because in negligence there is no intent to harm another person or thing, but the resulting harm occurs because of a lack of reasonable care. The tort of negligence has four elements: (1) a duty of due care that the defendant had, (2) the breach of the duty of due care, (3) connection between cause and injury, and (4) actual damage or loss. Even if a plaintiff can prove each of these aspects, the defendant may be able to show that the law excuses the conduct that is the basis for the tort claim. We examine each of these factors below.

Standard of Care

Not every unintentional act that causes injury is negligent. If you brake to a stop when you see a child dart out in front of your car, and if the noise from your tires gives someone in a nearby house a heart attack, you have not acted negligently toward the person in the house. The purpose of the negligence standard is to protect others against the risk of injury that foreseeably would ensue from unreasonably dangerous conduct.

The law has tried to encapsulate this idea in the form of the famous standard of “the reasonable person.” This fictitious person “of ordinary prudence” is the model that juries are instructed to compare defendants with in assessing whether those defendants have acted negligently. If a defendant has acted “unreasonably under the circumstances” and his conduct posed an unreasonable risk of injury, then he is liable for injury caused by his conduct. Perhaps in most instances, it is not difficult to divine what the reasonable man would do. The reasonable man stops for traffic lights and always drives at reasonable speeds, does not throw baseballs through windows, performs surgical operations according to the average standards of the medical profession, ensures that the floors of his grocery store are kept free of fluids that would cause a patron to slip and fall, takes proper precautions to avoid spillage of oil from his supertanker, and so on. The “reasonable man” standard imposes hindsight on the decisions and actions of people in society; however, the circumstances of life are such that courts may sometimes impose a standard of due care that many people might not find reasonable.

Duty of Care

Duty of care refers to the legal obligation or responsibility that an individual owes to others to act in a way that does not put them at an unreasonable risk of harm. In a negligence claim, the plaintiff must show that the defendant had a duty of care toward them. This means that the defendant should have acted in a way that a reasonably prudent person would have in similar circumstances.

The law does not impose on us a duty to care for every person. In general, the law imposes no obligation to act in a situation to which we are strangers. We may pass by the drowning child without risking a lawsuit. But if we do act, then the law requires us to act carefully. The law of negligence requires us to behave with due regard for the foreseeable consequences of our actions in order to avoid unreasonable risks of injury. Affirmatively determining a duty of care can be difficult. Physicians, for example, are bound by principles of medical ethics to respect the confidences of their patients, which would place a heightened duty of care on them in their medical capacity, but not necessarily as individuals. In some situations, it may be difficult to tell in what capacity a person with medical expertise is acting.

Breach of Duty of Care

Breach of duty of care occurs when the defendant fails to meet the standard of care that a reasonably prudent person would have exercised in similar circumstances. A plaintiff must demonstrate that the defendant’s actions (or inactions) fell below the expected standard of care, indicating negligence. Essentially, the defendant’s behavior did not meet the level of care that a reasonable person would have taken.

Establishing a breach of the duty of due care where the defendant has violated a statute or municipal ordinance is eased considerably with the doctrine of negligence per se, a doctrine common to all U.S. state courts. If a legislative body sets a minimum standard of care for particular kinds of acts to protect a certain set of people from harm and a violation of that standard causes harm to someone in that set, the defendant is negligent per se. For example, If Harvey is driving sixty-five miles per hour in a fifty-five-mile-per-hour zone when he crashes into Haley’s car and the police accident report establishes that or he otherwise admits to going ten miles per hour over the speed limit, Haley does not have to prove that Harvey has breached a duty of due care. She will only have to prove that the speeding was an actual and proximate cause of the collision and will also have to prove the extent of the resulting damages to her.

Causation: Actual Cause and Proximate Cause

Causation involves establishing a direct link between the defendant’s breach of duty and the harm suffered by the plaintiff. In tort theory, there are two kinds of causes that a plaintiff must prove: actual causes and proximate causes. Actual cause (causation in fact) can be found if the connection between the defendant’s act and the plaintiff’s injuries passes the “but for” test: if an injury would not have occurred “but for” the defendant’s conduct, then the defendant is the cause of the injury. Still, this is not enough causation to create liability. The injuries to the plaintiff must also be foreseeable, or not “too remote,” for the defendant’s act to create liability. This is proximate cause: a cause that is not too remote or unforeseeable. For proximate cause, foreseeability is key. The harm suffered by the plaintiff must have been a foreseeable consequence of the defendant’s breach of duty.

Damages

Damages refer to the actual harm, injury, or loss suffered by the plaintiff as a result of the defendant’s negligent action. To have a valid negligence claim, the plaintiff must show that they suffered some form of harm, whether it’s physical injuries, financial losses, emotional distress, or damage to property. Damages are a critical component because without damages, there can be no claim.

The fear that she might be injured in the future is not a sufficient basis for a plaintiff to bring a lawsuit. This rule has proved troublesome in medical malpractice and industrial disease cases. A doctor’s negligent act or a company’s negligent exposure of a worker to some form of contamination might not become manifest in the body for years. In the meantime, the tort statute of limitations might have run out, barring the victim from suing at all. An increasing number of courts have eased the plaintiff’s predicament by ruling that the statute of limitations does not begin to run until the victim discovers that she has been injured or contracted a disease.

The law allows an exception to the general rule that damages must be shown when the plaintiff stands in danger of immediate injury from a hazardous activity. If you discover your neighbor experimenting with explosives in his basement, you could bring suit to enjoin him from further experimentation, even though he has not yet blown up his house—and yours.

Problems of Proof

The plaintiff in a tort suit, as in any other, has the burden of proving his allegations.

He must show that the defendant took the actions complained of as negligent, demonstrate the circumstances that make the actions negligent, and prove the occurrence and extent of injury. Factual issues are for the jury to resolve. Since it is frequently difficult to make out the requisite proof, the law allows certain presumptions and rules of evidence that ease the plaintiff’s burden, on the ground that without them substantial injustice would be done. One important rule goes by the Latin phrase res ipsa loquitur, meaning “the thing speaks for itself.” The best evidence is always the most direct evidence: an eyewitness account of the acts in question. But eyewitnesses are often unavailable, and in any event, they frequently cannot testify directly to the reasonableness of someone’s conduct, which inevitably can only be inferred from the circumstances.

In many cases, therefore, circumstantial evidence (evidence that is indirect) will be the only evidence or will constitute the bulk of the evidence. Circumstantial evidence can often be quite telling: though no one saw anyone leave the building, muddy footprints tracing a path along the sidewalk are fairly conclusive. Res ipsa loquitur is a rule of circumstantial evidence that permits the jury to draw an inference of negligence. A common statement of the rule is the following: “There must be reasonable evidence of negligence but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

If a barrel of flour rolls out of a factory window and hits someone, or a soda bottle explodes, or an airplane crashes, courts in every state permit juries to conclude, in the absence of contrary explanations by the defendants, that there was negligence. The plaintiff is not put to the impossible task of explaining precisely how the accident occurred. A defendant can always offer evidence that he acted reasonably—for example, that the flour barrel was securely fastened and that a bolt of lightning, for which he was not responsible, broke its bands, causing it to roll out of the window. But testimony by the factory employees that they secured the barrel, in the absence of any further explanation, will not usually serve to rebut the inference. That the defendant was negligent does not conclude the inquiry or automatically entitle the plaintiff to a judgment. Tort law provides the defendant with several excuses, some of which are discussed briefly in the next section.

EXCUSES

There are more excuses (defenses) than are listed here, but contributory negligence or comparative negligence, assumption of risk, and act of God are among the principal defenses that will completely or partially excuse the negligence of the defendant.

Contributory and Comparative Negligence

Under an old common-law rule for contributory negligence, it was a complete defense to show that the plaintiff in a negligence suit was himself negligent. Even if the plaintiff was only mildly negligent, most of the fault being chargeable to the defendant, the court would dismiss the suit if the plaintiff’s conduct contributed to his injury. In a few states today, this rule of contributory negligence is still in effect. However, because the result of such a rule is manifestly unjust, this rule has been changed in many states to some version of comparative negligence. Under the rule of comparative negligence, damages are apportioned according to the degree of culpability of each of the parties involved. For example, if the plaintiff has sustained a $100,000 injury and is 20 percent responsible, the defendant will be liable for $80,000 in damages. In the Whitlock case (Case 4.2) above, at trial, the jury used comparative negligence to apportion responsibility between Plaintiff Whitlock and the University.

Assumption of Risk

Assumption of risk is a legal defense that a defendant can use in a negligence lawsuit if it can be shown that the plaintiff voluntarily and knowingly accepted the risks associated with a certain activity or situation, and therefore, the defendant should not be held liable for any resulting injuries or harm. In other words, the defendant asserts that the plaintiff cannot recover damages because they willingly exposed themselves to the danger and are responsible for their own injuries.

The assumption of risk doctrine arises in a few ways. The plaintiff may have formally agreed with the defendant before entering a risky situation that he will relieve the defendant of liability should injury occur. (“You can borrow my car if you agree not to sue me if the brakes fail, because they’re worn and I haven’t had a chance to replace them.”) Or the plaintiff may have entered into a relationship with the defendant knowing that the defendant is not in a position to protect him from known risks (the fan who is hit by a line drive in a ballpark). Or the plaintiff may act in the face of a risky situation known in advance to have been created by the defendant’s negligence (failure to leave, while there was an opportunity to do so, such as getting into an automobile when the driver is known to be drunk).

In some cases, the plaintiff might explicitly agree to waive their right to sue for injuries arising from a specific activity in a written waiver or release of liability. In still other situations, the actions of the plaintiff may show that they understand and accept the risk associated with certain activities like skydiving or rock climbing.

Act of God

Technically, the rule that no one is responsible for an “act of God,” or force majeure as it is sometimes called, is not an excuse but a defense premised on a lack of causation. If a force of nature caused the harm, then the defendant was not negligent in the first place. A marina, obligated to look after boats moored at its dock, is not liable if a sudden and fierce storm against which no precaution was possible destroys someone’s vessel. However, if it is foreseeable that harm will result from a negligent condition triggered by a natural event, then there is liability. For example, a work crew failed to remove residue explosive gas from an oil barge. Lightning hit the barge, exploded the gas, and injured several workmen. The plaintiff recovered damages against the company because the negligence consisted of the failure to guard against any one of a number of chance occurrences that could ignite the gas.

Vicarious Liability

Liability for negligent acts does not always end with the one who was negligent. Under certain circumstances, the liability is imputed to others. For example, an employer is responsible for the negligence of his employees if they were acting in the scope of employment. This rule of vicarious liability is often called respondeat superior, meaning that the higher authority must respond to claims brought against one of its agents. Respondeat superior is not limited to the employment relationship but extends to a number of other agency relationships as well.

Legislatures in many states have enacted laws that make people vicariously liable for acts of certain people with whom they have a relationship, though not necessarily one of agency. It is common, for example, for the owner of an automobile to be liable for the negligence of one to whom the owner lends the car. So-called dram shop statutes place liability on bar and tavern owners and others who serve too much alcohol to one who, in an intoxicated state, later causes injury to others. In these situations, although the injurious act of the drinker stemmed from negligence, the one whom the law holds vicariously liable (the bartender) is not himself necessarily negligent—the law is holding him strictly liable, and to this concept we now turn.

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