Negligence - Module 4 of 5
See Also:
Negligence
The Elements of Negligence
Negligent
actions are common types of tort actions, including personal injury and medical
malpractice claims. Negligence occurs when someone’s conduct falls below a “reasonable”
standard of care, which means the level of care that an ordinary person would
have exercised under similar circumstances.[1] While negligence typically
involves some act, it can also result from a failure to act when there is a
duty.
Negligent
acts are often classified as ordinary or gross negligence. Ordinary
negligence occurs when a person does not take reasonable precautions,
resulting in injury to another.[2] It may be an act of
carelessness, such as running a stop sign or failing to remove the ice from a
walkway. Gross negligence involves more than simple carelessness.[3] It means
an extreme disregard or indifference for the safety of others. An example
of gross negligence is speeding through a neighborhood with children playing
outside.
While courts
award compensatory damages for all levels of proven negligence, they may also
award punitive damages to punish the wrongdoer and deter similar behavior in
the future. Punitive damages are much more likely in cases of gross negligence.
The Arkansas
Supreme Court, in National By-Products Inc. v. Searcy House Moving Co., discussed
the requirements for punitive damages awards.[4] Reversing a punitive
damages award for $100,000, the court held that the facts do not show that the
defendant “intentionally acted in such a way that the natural and probable
consequence was to damage appellee's property. Nor do the facts show that
appellant knew that some act of negligence was about to cause damage, but still
continued to cause that damage.” The court determined that an award of punitive
damages requires evidentiary proof that the defendant acted intentionally with
knowledge that the act was likely to cause harm.
To prove negligence, a plaintiff must prove four essential elements: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached duty, (3) the breach of duty caused (4) damages to the plaintiff.[5]
Duty and Breach
A duty
of care is the legal responsibility that one party has to another party. The
2014 case of RGR, LLC v. Settle
was a negligence claim involving a wrongful death resulting from lumber piled
near a railroad crossing, blocking the view of drivers. Finding in favor of the
plaintiff, the Virginia Supreme Court determined that the lumber company owed a
duty of care to the community in general. The court stated, “every person has
the duty to exercise ordinary care in the use and maintenance of its property
to prevent injury or death to others.” [6]
When
determining whether there is a duty to act, courts may look at several factors,
including the defendant’s creation of the risk, the defendant’s assumption of
responsibilities, if any, and the defendant’s knowledge about the possibility
of harm. The existence of a business relationship may also indicate a duty to
act, such as the responsibility that a business owner has to a customer, a land
owner to guests and an innkeeper to hotel guests.
The
Connecticut case of Monk vs. Temple George explored the responsibility
that a business owner owes to a customer. The plaintiff was injured in an
attack in a parking lot owned by the defendant. The court found a duty of care based
on two factors: foreseeability and public policy. It stated, “Duty is a legal
conclusion about relationships between individuals, made after the fact, and
imperative to a negligence cause of action.” In reviewing public policy and
ruling in favor of the plaintiff, the court considered the following factors:
·
The normal expectations of the participants in
the activity,
·
The public policy of encouraging participation
in the activity, while weighing the safety of participants,
·
The avoidance of increased litigation, and
·
The decisions of other jurisdictions. [7]
The
next element is breach of duty, which means that the party with the duty
failed to meet the applicable standard of care. Negligence law uses the
standard of “a reasonably prudent person” and asks “how such a person would
behave in a particular situation, in pursuing his or her own objectives, to
avoid harming others in the process?”[8] To breach a duty,
therefore, the defendant must have behaved unreasonably.
So, if
an act could cause damage, but it was done after it was reasonably calculated
to avoid a greater harm, then the action is reasonable and therefore not a
breach of duty. For example, leaving a ship unattended during a storm could
certainly be considered negligent, but whether it was negligent in a given case
also depends on the burden involved and the risks to the crew.[9] Moreover, there cannot be
a blanket duty to make things safe, as that would place an unfair burden on
defendants. So, a municipality’s responsibility to maintain safe roads cannot
be construed to require it to guarantee absolute safety and to provide
guardrails in all possible risk areas.[10]
For the same reason, ignoring a very rare or unlikely risk may not be considered negligent. In Munn vs. Hotchkiss School, a prep school’s failure to warn students about potential disease-bearing insects was not absolute; it was up to a jury to decide whether the rarity of tick-borne encephalitis negates any breach of duty.[11]
Causation and Damages
Once a
duty and breach have been established, the court examines whether the breach proximately
caused the resulting injury. The Connecticut Supreme Court, in Label
Systems Corp. v Aghamohammadi, defined proximate cause as “an actual cause
that is a substantial factor in the resulting harm...The inquiry fundamental to all
proximate cause questions... is whether the harm which occurred was of the same
general nature as the foreseeable risk created by the defendant's
negligence."[12] As explained by the
Restatement (Second) of Torts § 431, a proximate cause determination requires
two elements: the tortious conduct is a substantial factor in bringing about
the injury, and there is no rule of law preventing defendant’s liability.[13] In examining whether the
act was a substantial factor, the court looks at all potential causes. The more
potential causes, the less likely the court to find one specific cause as a
substantial factor. The court may also consider the amount of time elapsed
between the defendant’s act and the plaintiff’s injury.
The
Louisiana case of Perkins v. Texas & N.O.R. Co,involved a collision
between a car and a train, with multiple potential causes.[14] The driver of the car had
crossed the train tracks even though the warning lights and signals were in
operation. The train engineer’s sight of the track was obstructed by a
warehouse. In addition, the train was travelling 12 miles-per-hour faster than
the self-imposed speed limit for the intersection. In examining which of these potential causes was
a substantial factor, the court stated that a train’s excessive speed would be
a cause “in bringing about the collision if the collision would not have
occurred without it. On the other hand, if the collision would have occurred
irrespective of such negligence, then it was not” a proximate cause. Finding
that the collision would have occurred regardless of the train’s speed, the
court ruled that the negligence of the train operator did not proximately cause
the plaintiff’s harm.
Another
factor in determining proximate cause is the foreseeability of an injury, or
the reasonable and likely consequence of an action. For example, if someone
swings a bat close to other people, it is foreseeable that someone may be hit. In
the Illinois case,Zokhrabov v. Park,[15] the plaintiff sued the
estate of a deceased man who was killed by a train because the deceased
person’s body was thrown into the plaintiff, causing him injury. The appellate
court ruled that the trial court erred and instead found that it was reasonably
foreseeable that the man’s body would be thrown onto the passenger platform
upon impact with the train. So, if he had negligently or intentionally wandered
into the path of the oncoming train, his estate could be liable for damage done
to bystanders.
The
final required element for a negligence case is damages. While damages
are typically physical harms to person or property, they may also be mental or emotional
injury, as in the case of the cause of action called “negligent infliction of
emotional distress.”
Dillon v. Legg[16] was a California case brought by a mother whose child was killed while crossing the street on front of her. While the lower court did not allow for the mother’s recovery for her own distress, ruling that she was not within the “zone of danger” of the collision, the Supreme Court of California reversed. It ruled that the mother’s injury was a foreseeable result of the accident, and she could thus collect damages for negligent infliction of emotional harm. The Court laid out three factors in determining the degree of foreseeability: (1) plaintiff’s location in proximity to the scene of the accident; (2) whether the shock experienced by plaintiff resulted from a direct emotional impact of the sensory and contemporaneous observance of the accident; and (3) the relationship between plaintiff and the victim.
Other Ways of Proving Negligence
The
doctrine of res ipsa loquitur,
Latin for “the thing speaks for itself,” states that some accidents, by their
very nature, imply negligent behavior.[17] Even with no evidence of defendant’s
specific action or lack of action, the facts indicate that negligence was the
cause of plaintiff’s harm. The elements necessary to establish res ipsa loquitur are: (1) The defendant had full control of the instrumentality that
caused the injury; (2) The accident could not have happened if those having
control had not been negligent; and (3) The plaintiff’s injury resulted from
the accident.[18]
The
classic English case of Byrne v. Boadle illustrates the principle.[19] The plaintiff was hit by
a falling flour barrel from a window in a room in which the defendant’s workers
stored and managed flour barrels. Though no specific negligent acts could be
proven, the defendant was found liable because negligence in handling a flour barrel
is the only reasonable explanation for a flour barrel falling out of the
window.
In the
Minnesota case, Leuer vs. Johnson, the plaintiff was shot and injured
while hunting with two other parties. The bullet was never found and none of
the men knew who fired the shot.[20] The court refused to
apply res ipsa loqitur here,
observing that “the doctrine of res ipsa
loquitur cannot be invoked unless all three of its elements are present”
and that the second element of "exclusive control" had not been established since it was unclear
who had control of the offending firearm.
Res ipsa loquitur commonly
applies to automobile accident cases and medical malpractice cases. For
example, the court in Fessenden v. Robert Packer Hospital held that
leaving a sponge in a patient does not require expert testimony to prove
negligence.[21]
The act speaks for itself in establishing negligence and a breach of duty by
the medical professional.
Negligence
per se occurs when a person violates a law or policy designed to
protect the public, causing an injury. Courts do not need to analyze whether a
breach of duty occurred because an illegal act is inherently considered a
breach of duty.[22]
As
described by the North Carolina Supreme Court, “It is the generally accepted
view that the violation of a statute enacted for the safety and protection of
the public constitutes negligence per se, i. e., negligence as a matter of law.
The statute prescribes the standard, and the standard fixed by the statute is
absolute. The common law rule of ordinary care does not apply–proof of the
breach of the statute is proof of negligence. The violator is liable if injury
or damage results, irrespective of how careful or prudent he has been in other
respects.”[23]
The Virginia case of Kaltman v. All American Pest Control involved a complaint against a pest control company that used chemicals not approved for residential use under state regulations.[24] Finding in favor of the plaintiffs, the court set out the following elements for determining negligence per se: 1) a showing that the defendant violated a statute enacted for public safety, 2) proof that the plaintiff belongs to the class of persons for whose benefits the statute was enacted and that the harm that occurred was of the type against which the statute was designed to protect, and 3) the violation was a proximate cause of the plaintiff’s injury.
Other Negligence Rules
Dram shop
laws
address the duties of licensed establishments, like restaurants and bars, when
selling alcohol to patrons.[25] Establishments located in
states with dram shop laws may be held liable if they serve alcohol to
obviously intoxicated people who then injure a third party as a result of their
intoxication. While most states have these laws, they vary on when and how they
apply. For example, some states include the sale of alcohol to underage people
within their dram shop laws. Others include language where the server cannot be
held liable unless he or she knew that the patron had an alcohol addiction.[26] The Florida dram shop
statute, for example, limits automatic liability to people who serve alcohol to
minors or those “habitually addicted to the use of any or all alcoholic beverages.”[27]
In Gonzalez
v. Stoneybrook West Golf Club, the estate of a man who was killed in a car
accident with a person who had consumed alcohol at a golf club sued for
wrongful death.[28]
The appeals court reversed a summary judgment in favor of the club, finding
that the bartender’s knowledge of the patron’s addiction was a question of fact
for the jury to decide.
Professional
negligence (or “malpractice”) arises when a professional who presents
himself as having specific skills and knowledge fails to meet the reasonable
standards of that industry, resulting in harm. For example, attorneys must
provide their clients with adequate legal knowledge and skill throughout a representation.
Failing to do so may cause clients to miss regulatory deadlines, lose contract
disputes or bear additional tax burdens. In addition to professional sanctions,
victims can recover monetary damages if a court finds professional malpractice.
Malpractice actions extend to many professions, including healthcare providers,
accountants, bookkeepers, tax preparers and engineers.[29]
To
establish professional malpractice, a plaintiff must: 1) sue the defendant in
his/her professional capacity; 2) prove that the alleged negligence arises out
of the professional relationship, and 3) prove that the alleged negligence is
substantially involved in the exercise of professional judgment.[30] When making
determinations about professional liability, courts often require testimony from
expert witnesses who can speak knowledgeably on the reasonable standards of
care in the relevant industry. The Connecticut case of Cammarota v. Guerrera
was a professional malpractice case against an attorney who handed a large
settlement check to someone other than his client. In its ruling, the court
examined whether expert testimony is necessary in all professional liability
matters. Though it established a general requirement for expert testimony, it
also recognized some circumstances where "the issues in dispute are not
beyond the knowledge of the ordinary juror."
In our
last module, we will continue our discussion of negligence by looking at some
of the myriad special rules and exceptions that govern negligence standards and
negligence actions.
[1] Ryan v. Napier, 425 P.3d 230 (Ariz. 2018).
[5] Restatement (Second) of Torts §§ 281-284 (Am. Law Inst. 1965).
[13] Restatement (Second) of Torts § 431 (Amer. Law Inst. 1965).
[29] W. Page Keeton, et al., Prosser and Keeton on Torts § 32, pp. 185-86 (5th Ed. 1984).
[30] Cammarota v. Guerrera, 87 A.3d 1134 (Conn. App. Ct. 2014).