Negligence

Negligence (unintentional tort)---- the unintentional causing of harm that

could have been prevented if________. (the defendant had acted as a

reasonable and prudent person) Negligence exists when four conditions

are met:(1) D must have owed P a duty;(2) D must have breached the duty;(3) P must have suffered a legally

recognizable injury;(4) The breach of duty must be the actual

and the legal cause of the plaintiff’s injury.

2. If a plaintiff wants to win and recover in a negligence suit, what must he prove?

(1)The existence of duty(2)The breach of that duty(3) Injury to the plaintiff(4)Causation between the

negligent conduct and the injury

Duty(1) The law of negligence measures duty

by an objective, yet flexible, standard of conduct----__________________. (the reasonable person standard)

(2) The reasonable person standard---- “a reasonable person of ordinary

prudence in similar circumstances” This standard is objective because

the reasonable person is a hypothetical person who is always thoughtful and cautious and never unreasonably endangers others.

Breach A person is guilty of breach of duty if

exposes another to an unreasonable, foreseeable risk of harm.

Cases(1)If Wilson is carefully driving his car

within the speed limit and has a heart attack that causes him to lose control and crash into a car driven by Thomas, is Wilson liable?

Wilson would ordinarily not be liable to Thomas for his injuries. The accident is not the result of any breach of that duty because it was unforeseeable.

(2) If Wilson’s doctor has advised him that he had a heart condition that made driving dangerous and then the above situation happens, is Wilson liable?

His failure to heed his doctor’s warning would probably amount to a breach of duty because he was plainly exposing others to foreseeable risk of harm by driving.

Injury(1) Statements (T or F)____ Negligent conduct alone is

tortious.____ Without injury, there is no

recovery.(2)To recover damages in a

negligence case, the plaintiff must prove there is a legally recognizable damage, or injury to him.

(3) If a plaintiff can prove the following kinds of injuries such as (a) some impact or contact with the plaintiff’s person ,(b) some serious physical injuries or symptoms resulted form the plaintiff’s emotional distress or (c) emotional harms, which one is more easily compensated?

Courts have great reluctance to impose liability for purely emotional harms caused by intentional wrongs (e.g., Infliction of Emotional Distress).

It might be correctly assumed that an even greater reluctance would exist when the conduct producing an emotional injury was merely negligent.

Causation ----a close causal connection

between________ and ________ (D’s conduct / P’s injury) Causation has two components: ________ and ________. (cause in fact/ proximate cause)(1) The causation in fact----actual cause Even if a person breaches a duty that

he owes to another person, no liability for negligence results unless the breach

of duty was the actual cause. A but for test:(to determine the

existence of actual cause) The defendant’s conduct is the actual

cause of the plaintiff’s injury if that injury would not have occurred but for the defendant’s breach of duty.

Case: On a windy day Allen negligently starts a

fire by using gasoline to start his charcoal grill. The fire started by Allen spreads and joins forces with another fire started by Baker, who was burning brush on his property but who failed

to take any precautions to prevent the fire from spreading. The combined fires burn Clark’s home to the ground. Clark sues both Allen and Baker for negligence.ANALYSIS:

In such a case, the court would ask whether each defendant’s conduct was a substantial factor in bringing about Clark’s loss. If the evidence indicates that Clark’s house would have been destroyed by either fire in absence of the other, both Allen and Baker are liable for Clark’s loss.

(2)proximate cause The courts have recognized that a

negligent person should not necessarily be responsible for every injury actually caused by her negligence.

This idea of placing some legal limit on a negligent defendant’s liability for the consequences of her actions is called proximate cause. Courts often say that a negligent defendant is liable only for the proximate results of her conduct.

Since the Palsgraf case, the courts have used foreseeability as the test for proximate cause.

(3) actual cause/ proximate cause Actual cause----causation in fact proximate cause----legal cause,

which is a question not of fact, but of law and social policy.

Although a defendant’s conduct may have been the actual cause of a particular plaintiff’s injury, she is liable only if her conduct was also the proximate (legal) cause of that injury.

(4) Superseding causes In some cases an intervening force

occurring after a defendant’s negligence may play a significant role in bringing about a particular plaintiff’s injury. A superseding intervening force may break the connection between a wrongful act and injury to another.

When should an intervening force relieve a negligent defendant from liability?

A. A high wind may spring up and this causes a fire set by Davis to spread and damage Parker’s property. Is Davis liable for the damage to Parker’s property?

B. Dalton negligently starts a fire that causes injury to several persons. The driver of an ambulance summoned to the scene to aid the injured has been drinking on duty and , as a result, loses control of his ambulance and runs up onto a sidewalk, injuring several pedestrians. Is Dalton responsible for the pedestrians’ injuries?

ANALYSIS:A. If the intervening force is a foreseeable

one, it will not relieve the defendant from liability.

Yes. Davis is liable for the damage to Parker’s property.

B. If the intervening force that contributes to the plaintiff’s injury is unforeseeable , most courts hold that it is a superseding or intervening cause that relieves the defendant from any liability for negligence.

No. Dalton is not responsible for the pedestrians’ injuries.

Actual / proximate / superseding cause

Negligent actual cause Injuries conduct (A+B+C)

Negligent Proximate cause Injuries conduct Foreseeablility (A+B)

Negligent Intervening force Injuries conduct Superseding cause

(foreseeablility)

6. Defenses to negligence:(1) Stevens voluntarily goes for a ride

in Markley’s car , even though Markley has told him that her brakes are not working properly. Could Stevens ask for damages if there is an accident?

assumption of risk: Stevens has voluntarily assumed the risk of injury as a result of the car’s defective brakes.

(2) If Parker steps into the path of Steven’s speeding car without first checking to see whether any cars are coming, could Parker ask for any recovery against Stevens?

• The doctrine of contributory negligence provides that plaintiffs who fail to exercise reasonable care for their own safety are totally barred from any recovery if their contributory negligence is a substantial factor in producing their injury.

(3) Durban pulls into the path of Preston’s speeding car without looking, causing an accident. When Preston files suit to recover for the damage, Durban argues that the fact that Preston was speeding amounts to contributory negligence. If Preston can convince the court that the accident could have been avoided if Durban had looked before puling onto the highway, she has a good chance of overcoming Durban’s contributory negligence defense.

(3) Durban pulls into the path of Preston’s speeding car without looking, causing an accident. When Preston files suit to recover for the damage, Durban argues that the fact that Preston was speeding amounts to contributory negligence. If Preston can convince the court that the accident could have been avoided if Durban had looked before puling onto the highway, she has a good chance of overcoming Durban’s contributory negligence defense.

A contributorily negligence plaintiff may be able to overcome an valid contributory negligence defense by arguing that the defendant had the last clear chance to avoid harm. The doctrine of last clear chance focused on who is last at fault in time.

(4)Dunne negligently injuries Porter and Porter suffers $10,000 in damages. A jury, however, determines that Porter was 20 percent at fault. Porter could recover only $8,000 from Dunne.

But what if Porter is determined to be 60% at fault?

Under a comparative negligence system, courts seek to determine the relative fault of the parties to a negligence action and award damages in proportion to the degree of fault determined.

But what if Porter is determined to be 60% at fault?

The results vary depending on whether the state has adopted a pure or a mixed comparative fault system.

(1) Under a pure comparative fault system, plaintiff are allowed to recover a portion of their damages even if they are more at fault than the defendant.

(2) Under a mixed system, plaintiff who are as much at fault as, or more at fault than, the defendant are denied any recovery.

Case analysis:1. What are the main points in Judge

Cardozo’s reasoning against the plaintiff?

(1) The guard’s act, even if it was a wrong, was not one intended against the plaintiff. (2) Different kinds of interest were involved in the “wrongful” act of the guard and the claim of the plaintiff: the guard’s act, even if it were considered wrong, was a tort of invasion of a property right. The plaintiff was suing because of her bodily injury. (3) There was no foreseeable

probability to the eye of reasonable vigilance that the parcel would threaten the safety of the plaintiff. So the guard’s act was not a wrong to the plaintiff.

2. What is the main difference between Judge Cardozo’ reasoning and Judge Andrews’ reasoning of this case?

The two judges differ on the question whether the guard ea negligent to the plaintiff.

(1) To Judge Cardozo, negligence is a relative concept. Defendant owes the duty of care only to persons who may be

injured by his wrongful act in the judgment of a reasonable man. In this case, the act of the guard, even if it is deemed a wrong, could only be a wrong to the owner of the package. The package looked harmless. The plaintiff was some distance away. The guard could not reasonably foresee that his action would endanger the plaintiff. So he did not owe the plaintiff the duty of care, and there was no tort committed against the plaintiff. Because of this, there is no need to .

discuss proximate cause.(2) To Judge Andrews, the negligent

person owes the duty of care not only to those who may be endangered in the judgment of the reasonable man, but also to persons actually injured, because a duty of care is imposed on each member of society. After establishing that the defendant in this case did owe the plaintiff the duty of care, Judge Andrews discussed about the consequences of the guard’s beach of that duty, and concluded that all elements of proximate cause were present in this case.

3. How did Judge Andrews explain the concept of proximate cause?

To Judge Andrews, proximate cause is the boundary arbitrarily drawn by the court to limit liability for a wrong which results in a chain of injuries. There is no fixed rule for determining whether an injury is proximately caused by a wrong. The judge has to make a rule in each case. The only guide is common sense. However, certain factors are helpful in determining proximate cause. One is that the injury must have been caused by the wrong. The second is that there should not be too much distance either

in time or space between the wrong and the injury.

4. Both judges approached the question from the theory of negligence. Is there any other theory of liability under which the railroad company would be held liable to the plaintiff?

Yes. Under the theory of strict liability, the railroad company would be held liable even without fault to the passengers for injuries to their person.