Chapter 5 Torts and Strict Liability Part II Unintentional Torts (Negligence)

Unintentional Torts (Negligence) Under the doctrine of unintentional tort, commonly referred to as negligence, a person is liable for harm that is the foreseeable consequence of his or her actions. Negligence is defined as “ the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.” To be successful in a negligence lawsuit, the plaintiff must prove that: the defendant owed a duty of care to the plaintiff, the defendant breached this duty of care, the plaintiff suffered injury, and the defendant’s negligent act caused the plaintiff’s injury. Each of these elements is discussed in the paragraphs that follow.

Unintentional Torts (Negligence) Duty of Care To determine whether a defendant is liable for negligence, it must first be ascertained whether the defendant owed a duty of care to the plaintiff. Duty of care refers to the obligation that people owe each other—that is, the duty not to cause any unreasonable harm or risk of harm. The courts decide whether a duty of care is owed in specific cases by applying a reasonable person standard. Under this test, the courts attempt to determine how an objective , careful, and conscientious person would have acted in the same circumstances and then measure the defendant’s conduct against that standard. The defendant’s subjective intent (“I did not mean to do it”) is immaterial in assessing liability. Defendants with a particular expertise or competence are measured against a reasonable professional standard.

Unintentional Torts (Negligence) Breach of Duty Once a court finds that a defendant actually owed the plaintiff a duty of care, it must determine whether the defendant breached that duty. A breach of the duty of care is a failure to exercise care. In other words, it is the failure to act as a reasonable person would act. A breach of this duty may consist of either an action (e.g. throwing a lit match on the ground in the forest and causing a fire) or failure to act when there is a duty to act (e.g. a firefighter refusing to put out a fire). Generally, passerby are not expected to rescue others gratuitously to save them from harm.

Unintentional Torts (Negligence) Injury to Plaintiff Even though a defendant’s act may have breached a duty of care owed to the plaintiff, this breach is not actionable unless the plaintiff suffers injury. The damages recoverable depend on the effect of the injury on the plaintiff’s life or profession. Actual Cause A defendant’s negligent act must be the actual cause, or the causation in fact, of the plaintiff’s injuries. If a corporation negligently pollutes the drinking water in a town and a certain number of people in the town suffer from kidney failure, to hold the corporation responsible in tort would require showing that cause-and-effect relationship exists between these two occurrences.

Unintentional Torts (Negligence) Proximate Cause Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act. Based on public policy, the law establishes a point along damage chain after which the negligent party is no longer responsible for the consequences of his or her actions. This limitation on liability is referred to as proximate cause, or legal cause. The general test of proximate cause is foreseeability. A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the plaintiff. Situations are examined on a case-by-case basis. The landmark case establishing the doctrine of proximate cause is Palsgraf v. The Long Island Railroad Company (p. 126 of the Book and the Case brief that follows here).

Palsgraf v. Long Island Railroad Co. Brief Facts: Whilst the defendant’s employees were helping a passenger aboard a train, the package he was carrying was dislodged and fell on the track. The package, which gave no indication of its contents, contained fireworks which exploded when they hit the track. The vibrations from the explosion caused scales some distance away to fall upon and injure the plaintiff Helen Palsgraf, an intending passenger. Palsgraf sued the railroad, claiming negligence. The Trial Term and the Intermediate Appeals Court found in favor of Palsgraf. The Long Island Railroad Co. appealed. Issue: Did the defendant (Long Island Railroad Co.) act negligently toward the plaintiff (Helen Palsgraf) by actions that caused another passenger’s unmarked package of of fireworks to explode, knocking scales over on the plaintiff. Decision: No. Negligence is constituted by a breach of duty to the individual complaining the neglect of which invades a legally protected interest. The Court of Appeals of New York reversed the decision of the lower courts and dismissed the complaint, with costs in all courts

Palsgraf v. Long Island Railroad Co. Brief Reason: Before an action may be considered negligent, a failed duty to the individual complaining must be found, which would have averted or avoided the injury. Nothing about the situation reasonably suggested that the fall of the package would result in an explosion which would harm those at a distance. As such, there was nothing which could foreseeably be done to prevent the accident. Thus, the defendant did not act toward the plaintiff negligently. Any negligence was to the passenger the contents of whose package were destroyed. “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.” Negligence towards another passenger does not constitute negligence toward the plaintiff, though injury may result. For an act to be considered negligent, a violation of the complaining individual’s right must have occurred. One cannot complain of negligence to another party. The Dissenting opinion argued that because negligence toward another passenger caused the injury to the plaintiff, the railroad should be liable. Often injury does not result from infringement of rights. A negligent act affects the world at large. Thus, an act may be negligent to the world at large, and the defendant is liable to anyone injured by the act, however unexpected the injury.

Special Negligence Doctrines Res Ipsa Loquitur If a defendant is in control of a situation in which a plaintiff has been injured and has superior knowledge of the circumstances surrounding the injury, the plaintiff might have difficulty proving the defendant’s negligence. In such a situation, the law applies the doctrine applies the doctrine of res ipsa loquitur (Latin for “ the thing speaks for itself”). This doctrine raises a presumption of negligence and switches the burden to the defendant to prove that he or she was not negligent. Res ipsa loquitur applies in cases where the following elements are met: 1. The defendant had exclusive control of the instrumentality or situation that caused the plaintiff’s injury. 2. The injury would not have ordinarily occurred but for someone’s negligence.

Special Negligence Doctrines Fireman’s Rule Under the fireman’s rule, a firefighter who is injured while putting out a fire may not sue the party whose negligence caused the fire. This rule has been extended to police officers and other government workers. The bases for this rule are (1) people might not call for help if they could be held liable; (2) firefighters, police officers, and other such workers receive special training for their jobs; and (3) these workers have special medical and retirement programs that are paid for by the public. “Danger Invites Rescue” Doctrine The law recognizes a “danger invites rescue” doctrine. Under this doctrine, a rescuer who is injured while going to someone’s rescue can sue the person who caused the dangerous situation.

Special Negligence Doctrines Liability of Common Carriers and Innkeepers The common law holds common carriers and innkeepers to a higher standard of care than it does other businesses. Common carriers and innkeepers owe a duty of utmost care—rather than a duty of ordinary care—to their passengers and guests. The concept of utmost care is applied on a case-by-case basis. Obviously, a large hotel must provide greater security to guests than “mom-and-pop” motel.

Defenses against Negligence A defendant in a negligence lawsuit may raise several defenses to the imposition of liability. These defenses are discussed in the following paragraphs. Superseding, or Intervening, Event Under negligence, a person is liable only for foreseeable events. Therefore, an original negligent party can raise a superseding, or intervening, event as a defense to liability. Assumption of the Risk If a plaintiff knows of and voluntarily enters into or participates in a risky activity that results in injury, the law recognizes that the plaintiff assumed, or took on, the risk involved. Thus, the defendant can raise the defense of assumption of the risk against the plaintiff. This defense assumes that the plaintiff (1) had knowledge of the specific risk and (2) voluntarily assumed that risk.

Defenses against Negligence Contributory Negligence Sometimes a plaintiff is partially liable for causing his or her own injuries. Under the common law doctrine of contributory negligence, a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant. Many states follow this rule. Comparative Negligence The application of the doctrine of contributory negligence could reach an unfair result where a party only slightly at fault for his or her injuries could not recover from an otherwise negligent defendant. Many states have replaced the doctrine of contributory negligence with the doctrine of comparative negligence. Under this doctrine, damages are apportioned according to fault.