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Special Rules in Negligence - Module 5 of 5

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Special Rules in Negligence

Negligence rules include various distinctions depending on the details of the event. In this module, we’ll look at some of these variations and their impacts on the applications of negligence rules.

Duties to Act           

While people always must act with reasonable care to avoid harming others, there is no general duty to act to save people from other harmful sources. There is, for example, no duty to warn a pedestrian of oncoming traffic. Still, a duty to act can be created by statute or relationship or when one’s action creates the dangerous situation.

Some states have duty-to-act statutes. Vermont passed one of the nation’s first such laws, which states in part that “a person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.”[1] In summary, if a person can assist someone who is in danger, without harming himself, he has a statutory duty to act under the laws of Vermont.  

Even with no state statute, some relationships create a duty to act, including:

·         Physician and patient,

·         Parent or legal guardian and child,

·         Common carriers and passengers,

·         Business owners and customers, and

·         Employers and employees.[2]

Rotheli v. Chicago Transit Authority discussed the duty imposed on common carriers under Illinois law.[3] The case involved a passenger thrown from a bus operated by the defendant. The court ruled that the passenger’s decision to pay for the carrier’s service created a duty between the carrier and the passenger. In its ruling, the court stated, “While this contract is in effect, the carrier owes a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect the safety of the passenger and such duty is continuous throughout this relationship.” This common carrier duty to act is more expansive than the average duty of care, creating a responsibility to promote passenger safety and protect them from harm. Under some state laws, the common carrier duty to act only applies during operation of the vehicle, while other states extend the duty to any property owned by the carrier, such as bus stations or train platforms.[4]

A duty to act may also exist between employers and their employees, such as when an employer can protect an employee from foreseeable harm. Employers have the duty to provide their employees with safe and secure working environments. For example, the California Fair Employment and Housing Act requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.”[5] An employer’s duty to protect employees may even extend to financial injuries. A 2017 New York case, Sackin v. Transperfect Global, Inc., involved a data breach where employees’ social security numbers, addresses, and salary information was compromised. The court held that an employer’s duty to protect this sensitive information existed under common law as well as New York statutory law.[6]  

First responders may also have a duty to act, with certain statutory limitations. A federal appeals court in Warren vs. District of Columbia, explored the duty of police officers to act to prevent harm to a citizen.[7] The lawsuit alleged that members of the D.C. Metropolitan Police Department failed to provide adequate police services. Finding in favor of the Police Department, the Court of Appeals ruled that officers owe a duty to the public at large and not any specific person. An individual duty only exists if, “First, there must be direct contact or some other form of privity between the victim and the police department so that the victim becomes a reasonably foreseeable plaintiff. Second, there must be specific assurances of police services that create justifiable reliance by the victim. Without both of these elements, the duty to provide police services remains a general, nonactionable duty to the public at large.”   

Courts and state legislatures have also considered whether EMS workers have a duty to act. Courts generally interpret this duty as a responsibility to respond expediently, perform a thorough assessment, provide appropriate treatment and transport the patient (if necessary). However, some courts have ruled that EMTs have no greater duty than ordinary citizens. For instance, in Zepeda v. City of Los Angeles, the Court of Appeals of California reviewed the actions of a paramedic team that refused to treat a gunshot victim until the police arrived on the scene.[8] Finding in favor of the city, the court stated that “the City’s paramedics provided no form of assistance and were not obligated to do so either by statute or common law rule.”

Good Samaritan Laws

When people decide to aid a person in need, Good Samaritan laws may shield them from liability if their help is ineffective or even harmful. These laws vary from state to state, with some states providing greater protections than others. Virginia’s Good Samaritan law provides protection for anyone who, in good faith, “renders emergency care or assistance, without compensation, to any ill or injured person at the scene of an accident, fire, or any life-threatening emergency, or en route therefrom to any hospital, medical clinic or doctor's office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance.”[9]

Vermont’s statute is one of the broadest in the country, shielding good samaritans from civil damages “unless his acts constitute gross negligence or unless he will receive, or expects to receive, remuneration.”[10] By comparison, until amended in 2011, Alabama’s code only protected trained rescuers or public-school system employees, except under circumstances involving cardiac arrest.[11] It offers no protection for most lay people who choose to act. Oklahoma’s Good Samaritan Act only protects unlicensed rescuers when the emergency involves CPR or bleeding.[12]  

Premises Liability

Premises liability places a duty of care on property owners, governing when property owners can be held liable for injuries occurring on their premises. The level of duty and care required depends on the type of property owner involved and the type of visitor to the property. States classify visitors into three categories: invitees, licensees and trespassers.

Invitees enter a property for purposes for which land is held open to the public or for business-related reasons.[13] They may be customers in a store or people who enter an establishment for paid services. Owners typically owe these visitors the highest standard of care, meaning that the premises owner must keep the premises safe and secure for invitees. These premises liability claims commonly involve slips and falls, as well as falling objects. For example, a customer who slips on a spilled drink or trips over a “wet floor” sign may bring a premises liability claim.

In Campbell vs. Weathers,[14] the plaintiff entered a store but, prior to making a purchase, fell into an open trap door on his way to the bathroom. The trial court ruled that the plaintiff was not an invitee because he had not made a purchase at the time of the accident. Reversing the trial court’s decision, the appeals court ruled that the plaintiff was an invitee of the business owner, even without making a purchase. The court noted that the plaintiff had shopped in the store numerous times and utilized the bathroom on various occasions.  

Licensees enter a property with the owner’s consent, though not necessarily for   business purposes.[15] Licensees may include social guests, for example. Though the duty of care is not as high for licensees, owners still have a duty to keep the premises in safe condition or, at the least, to warn licensees of known dangers.[16] Peralta v. Henriquez was brought by a houseguest who was injured while trying to maneuver through a dark parking lot owned by the defendant.[17] Finding in favor of the plaintiff, the New York court held that the defendants “had a duty to provide adequate lighting in the lot at the time of the plaintiff's accident because they permitted tenants and guests to park in their lot, 24 hours per day.”

The third type of visitor to a property is the trespasser, who enters property without invitation or the consent of the property owner.[18] They are owed the least amount of care. In most states, an owner only owes a duty not to intentionally injure a trespasser or act with gross negligence.[19]

Still, if the owner knows that children are likely to be attracted to something on the property, the owner has the responsibility to take reasonable steps to keep children out or to make the premises safe. This doctrine is known as the “attractive nuisance” rule.[20] In Trosclair v McMillan, a child was injured after entering a yard to jump on a trampoline without the owner’s permission.[21] The court stated that “the duty owed by the defendant to a plaintiff in a premises liability case depends upon the status of the plaintiff at the time the injury occurred… But the only duty owed to a trespasser is the duty not to cause injury ‘willfully, wantonly, or through gross negligence.’”

Contributory Negligence and Assumption of Risk

Contributory negligence may provide a defense to negligence, potentially reducing the defendant’s liability for injury. This means that the plaintiff was also partially at fault. For example, if the plaintiff was jaywalking and is hit by a speeding defendant’s car, both parties are at fault. How much each person’s negligence contributed to the accident is a fact-based question for a jury.

Most states use contributory negligence laws that use a “percentage of fault” formula to reduce defendant’s liability, referred to as comparative negligence. For example, Arizona’s comparative negligence law allows a plaintiff to recover damages, even if it is found that he was 99% responsible for the event (he can still recover 1% of his injury).[22] Other states use a modified comparative negligence model, where the plaintiff must be less than 50% responsible for his injuries to recover any damages. Likewise, under Utah’s comparative negligence law, if the plaintiff is found to be 50% or more responsible, there is no recovery. If the plaintiff is found to be 49% responsible or less, recovery is calculated based on percentage of fault. If the defendant is found to be 70% at fault and the plaintiff is found to be 30% at fault, the plaintiff can only recover 70% of the compensatory damages.[23]

A few states use contributory negligence laws that completely bar any award of damages if plaintiff is found to be at all contributorily negligent. Under Maryland’s contributory negligence law, for example, any fault on the part of the plaintiff bars any award of compensatory damages.[24] For example, in Coleman v. Soccer Association of Columbia, a volunteer soccer coach suffered severe facial injuries after an unmoored metal soccer goal fell and crushed him. Upholding the state’s 166-year-old contributory negligence statute, the Maryland Court of Appeals ruled that the coach’s negligent action in grabbing the crossbar made him partly at fault. Therefore, he was barred from receiving any compensation.[25]

Assumption of risk provides an even stronger potential defense to a negligence claim. A plaintiff is barred from relief if he assumed the risk of harm arising from the defendant’s actions.[26] There are two categories of this defense: implied and expressed assumption of risk. An implied assumption of risk arises when a plaintiff’s actions or inactions imply consent to be subject to known dangers. This is commonly used to defend negligence claims involving sporting events or activities, where the plaintiff’s attendance or participation implies an assumption of the involved dangers. For example, a person who sits at a baseball game assumes the risk of being hit by a foul ball.[27]  

An expressed assumption of risk arises when a plaintiff implicitly relieves the defendant of any duty to protect the plaintiff from harm. A liability waiver may be viewed as an expressed assumption of risk.[28] In City of Santa Barbara v.Superior Court, the family of a girl who died while swimming at a summer camp sued, while the defendant produced a waiver signed by the parents. The court held that even when a recreational facility obtains valid, signed liability waivers from customers, they can still be held liable for injuries if there is evidence of gross negligence or an extreme failure to exercise an ordinary standard of care. Therefore, even an expressed assumption of risk may not provide an adequate defense for gross negligence.[29]

Strict Liability

Strict liability is an exception to the general rules that some level of negligence or fault is required for liability. It stems from the theory that some acts are so inherently dangerous that negligence and fault are unnecessary – that by undertaking the actions, the defendant assumes the risk of something going wrong and someone getting hurt. Actions subject to strict liability include “abnormally dangerous” activities like dynamite blasting, injuries caused by some animals and injuries caused by certain defects in consumer products.[30]

In considering whether a chemical spill was abnormally dangerous, a court laid out the following factors for consideration: “(1) existence of a high degree of risk of some harm to the person, land or chattels of others, (2) likelihood that the harm that results from it will be great, (3), inability to eliminate the risk by the exercise of reasonable care, (4) extent to which the activity is not a matter of common usage, (5) inappropriateness of the activity to the place where it is carried on, and (6) extent to which its value to the community is outweighed by its dangerous attributes.”[31] The court found that the blasting in that case did not rise to the level of an abnormally hazardous action, because it could have been avoided with reasonable care. Therefore, a negligence determination was more appropriate than strict liability. 

Animal attacks fall under the strict liability category in some cases. Most states maintain strict liability laws for dog bites, though the specific elements may vary. For example, the state of Georgia’s dog bite statute imposes strict liability for injuries that result from dogs that have been classified as vicious or dangerous.[32] The Georgia case of Swanson vs. Tackling involved a child who was bitten by the defendant’s dog. The trial court ruled in favor of the dog owner, based on the fact that the dog had never been classified as dangerous. The appeals court affirmed, reiterating that the statute required a classification of dangerous or vicious.[33]  

In addition to dog bites, strict liability animal statutes commonly apply to injuries resulting from livestock and wild animals.[34]  Historically, the owners and possessors of these animals have been held strictly liable if the animals escape from their properties and hurt people, even under circumstances where the owner exercised reasonable care. However, recent court decisions have been moving away from the strict liability requirement and towards a negligence standard. For example, in Cowden v. Bear Country, Inc., the plaintiff was injured by a mountain lion while visiting a wildlife park.[35] The federal court for the District of South Dakota refused to apply a strict liability standard, instead finding that that defendant’s liability should center on negligence and duty of care.


            Thank you for participating in LawShelf’s course on intentional and negligence torts. We hope that you now have a broad understanding of the basics of tort law and will be able to better understand more advanced courses in this area. Please feel free to take advantage of these courses and please let us know if you have any questions or feedback.

[2] Restatement (Second) of Torts §§ 314 to 320 (Am. Law Inst. 1965).

[3] Rotheli v. Chicago Transit Authority,130 N.E.2d 172 (Ill. 1955).

[6] Sackin v. Transperfect Glob. Inc.,  278 F. Supp. 3d 739 (S.D.N.Y., 2017).

[7] Warren v. District of Columbia, 444 A.2d. 1 (D.C. 1981).

[8] Zepeda v. City of Los Angeles, 223 Cal. App. 3d 232 (Cal. Ct. App. 1990).

[11] Ala. Code §6-5-332 (2011).

[13]  Restatement (Second) of Torts § 332 (Am. Law Inst. 1965).

[14] Campbell v. Weathers, 111 P.2d 72 (Kan. 1941).

[15] Scheibel v. Lipton,102 N.E.2d 453 (Ohio 1951).

[16] Restatement (Second) of Torts § 343 cmt b (Am. Law Inst. 1965).

[17] Peralta v. Henriquez, 790 N.E.2d 1170 (N.Y. 2003).

[18]) Restatement (Second) of Torts § 329 (Am. Law Inst. 1965).

[19] Hyde v. Hoerauf, 337 S.W.3d 431 (Tex. Ct. App. 2011).

[20] Bennett v. Stanley, 748 N.E.2d 41 (Ohio 2001).

[21] Trosclair v.McMillan,  2013 Tex. App. LEXIS 12966 (Tex. App. 2013).

[26] Restatement (Second) of Torts § 496A (Am. Law Inst. 1965).

[27] Restatement (Second) of Torts § 496C (Am. Law Inst. 1965).

[28] Restatement (Second) of Torts § 496B (Am. Law Inst. 1965).

[29] City of Santa Barbara v.Superior Court,161 P.3d 1095 (Cal. 2007).

[30] Restatement (Second) of Torts § 520 (Am. Law Inst. 1965),

[31] Arlington Forest Assoc. v. Exxon Corp.,774 F. Supp. 387 (E.D.Va. 1991).

[32] Ga. Code Ann. §§ 51-2-6 to 7 (2018).

[33] Swanson v. Tackling, 783 S.E.2d 167 (Ga. Ct. App. 2016).

[34] Restatement (Second) of Torts §§ 504, 507 (Am. Law Inst. 1965).

[35] Cowden v. Bear Country, Inc., 382 F.Supp. 1321 (D.S.D. 1974).