Breach of Duty Part 1

Once we have established that the defendant owes a duty to the plaintiff, it must then be shown that the defendant breached this duty either through a negligent act or through an omission ,where he was legally required to act.

In determining whether the defendant has breached his duty, we must demonstrate two things:

1. Proof of what actually happened.
2. That the defendant acted unreasonably under the circumstances as measured by the reasonable man test.

There are two ways to prove what actually happened. First, there is direct evidence. For example:

Pratt is walking toward a darkened staircase. Pratt slips at the top of the staircase and falls down the stairs. It turns out that a pipe is leaking and dripping water onto the top step creating a slippery puddle. Pratt brings pictures of the leaking pipe, the puddle and the wet stairs as evidence. Further, the person who came to help Pratt saw him slip at the top of the stairs. This is direct evidence.

The second way of proving what actually happened is through circumstantial evidence.

Although it is not direct evidence, circumstantial evidence provides enough facts so that a jury can reasonably infer negligence on the part of the defendant. For example:

Pratt brings proof that there was a leaking pipe and that he slipped. Further, the person who came to help Pratt testified that the bottom of Pratt’s shoes were wet after the fall. Thus, while this is not direct evidence that Pratt slipped on wet stairs, this could be enough evidence for a jury to draw an inference.

However, there is a limitation to the admissibility of circumstantial evidence:

The Plaintiff may not bring evidence of similar accidents that have happened in the past. For example:

Pratt is the twentieth person to slip and fall down this particular set of stairs. Those previous nineteen accidents are inadmissible as evidence of negligence on the part of the building owner. The rationale here is that, just because the same kind of thing has happened on nineteen previous occasions does not automatically mean that this is what happened to Pratt.

Conversely, the plaintiff may be the only person to slip and fall down this set of stairs. The defendant landowner will not be allowed to bring in this fact to prove that there was no negligence. The rationale here is that just because an accident like this has never happened in the building before does not mean that it didn’t happen to Pratt.

The second step in determining breach is establishing whether the defendant’s conduct was reasonable or unreasonable under the circumstances. See McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th Cir. 1987). This requires a jury to balance both the risks and the benefits of the defendant’s actions.

The risk of the defendant’s actions is a combination of both the kind of harm that could occur and the likelihood of that harm happening. This magnitude of risk must be weighed against the benefit of the actions that the defendant took. The defendant’s actions will be considered unreasonable, and therefore negligent, if the foreseeable risks outweigh the benefit of his actions. See United States v. Carroll Towing, 159 F.2d 169.

The general rule is that, where the risk of injury is low but the benefit is high, the defendant’s conduct is more likely to be considered reasonable. However, where the benefit of the conduct is not so high and less dangerous alternatives are available at little cost or effort, it is more likely that negligence will be found, especially if the risk of injury is higher. Obviously, these determinations will vary on a case by case basis depending on the circumstances under which the defendant acts. See Pease v. Sinclair Refining Co., 104 F.2d 183 (2d Cir. 1939). For example.

Dave, a trucker, is shipping a truck full of toxic waste from Boston to New York. Before leaving Boston Dave secures the toxic waste into his truck using hemp ropes to tie down the cargo. Metal chains would more effectively secure the cargo but Dave decides to use hemp rope because it is cheaper. In a situation where the cargo falls off the truck and Dave is sued for negligence, the jury would have to weigh the potential risk involved in Dave’s actions against the benefit of those actions. The potential risk involved is that now there is a greater risk that toxic waste will fall off the truck and spill onto the highway. The benefit is that the trucker saves money in using hemp rope instead of metal chains. 

Here, it is clear that the risk of harm outweighs the benefit of Dave’s actions. This means that Dave’s actions are unreasonable and therefore negligent. Had Dave been transporting a shipment of water the equation might change. Water is not a dangerous material, and thus, the risk of foreseeable injury or harm decreases. After all, the worst thing that can happen if water spills on the highway is that the highway gets wet. When weighed against the benefit that Dave got from using hemp rope instead of metal chains, the benefit probably outweighs the risk of harm. In this case, Dave’s actions would be considered reasonable.

The costs of safeguarding against risk must always be measured against the likelihood and extent of damage. The more likely and more dangerous the harm, the greater the effort and expense that must be undertaken to avoid the harm. Conversely, the less likely the harm the less effort and expense need be undertaken.