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Negligence - Module 4 of 5

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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).

[6] RGR, LLC v. Settle,764 S.E.2d 8 (Va. 2014).

[8] Henry T. Terry, Negligence, 29 HARV. L. REV. 40 (1915).

[9] United States v. Carroll Towing Co.,159 F.2d 169 (2d. Cir. 1947).

[10] Davison v. Snohomish County, 270 P. 422, (Wash. 1928).

[11] Munn v. Hotchkiss School,  165 A.3d 1167 (Conn. 2017).

[12] Label Systems Corp. v. Aghamohammadi,852 A.2d 703 (Conn. 2004).

[13] Restatement (Second) of Torts § 431 (Amer. Law Inst. 1965).

[14] Perkins v. Texas & N. O..R. Co.,147 So. 2d 646, 648 (La. 1962).

[15] Zokhrabov v. Park,  963 N.E.2d 1035 (Ill. App. Ct. 2011).

[16] Dillon v. Legg,  441 P.2d 912 (Cal. 1968).

[18] Cox v. Wilson, 267 S.W.2d 83, 84 (Ky. 1954).

[19] Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863), https://h2o.law.harvard.edu/collages/566.

[20] Leuer v. Johnson, 450 N.W.2d 363 (Minn. Ct. App. 1990).

[21] Fessenden v. Robert Packer Hospital, 97 A.3d 1225 (Pa. Super. Ct. 2014).

[23] Cowan v. Murrows Transfer, Inc., 138 S.E.2d 228 (N.C. 1964).

[24] Kaltman v. All American Pest Control,706 S.E.2d 864 (Va. 2011).

[27] Fla. Stat. §768.125 (2014).

[28] Gonzalez v. Stoneybrook West Golf Club,225 So.3d 891 (Fla. Dist. Ct. App. 2017).

[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).