Negligence may result from an individual’s actions if the individual fails to provide due care to others during the course of those actions.  Alternatively, under more limited circumstances, negligence may result from an individual’s inaction.

To prove liability resulting from negligence, a plaintiff must prove four elements: Duty - Breach - Causation - Damages

1. Duty- negligence law provides that a person has a duty to provide "reasonable care" to all "foreseeable" persons and property.
    
   

   Comment- Unlike contract law, where an individual must enter into a contract to be liable under contract law, every human being is capable of committing a tort.  However, jurisdictions may specify a minimum age under which a child is incapable of committing a tort.

    
   

   The existence of a duty is determined using the following definitions:

   1. reasonable care – the requirement of reasonable care specifies that every human being owes a duty of "reasonable care" to all others.
       
      Reasonable care is the standard used by a finder of fact to determine if a negligent act has been committed.  The standard requires a determination of "whether a reasonable person in a similar situation would have acted in a similar same manner."
       
      

      Example- Chad leaves his skateboard on the stairs that lead to the basement of his home.  Biff, a visitor in Chad’s home, is injured when he steps on the skateboard.  The reasonable care issue is whether a reasonable person would have removed the skateboard from the stairs, or taken some other precaution to avoid the injury.  Other precautions could include notifying Biff that the skateboard was on the stairs, or closing off entry to the stairs.

       
      

      Malpractice- malpractice is a heightened standard of reasonable care.  Malpractice refers to a standard of care owed by professionals.  The law holds lawyers, doctors, and other professionals to a higher standard of care because of the specialized training they receive.  While the reasonable care standard compares activity to a reasonable person in the whole population, the malpractice standard compares a professional’s activity to a reasonable professional in the field (e.g. the actions of a doctor are compared to what other doctors would do).

   2. "foreseeability"- the requirement of foreseeability specifies that every individual is only required to provide reasonable care to prevent "foreseeable injuries".
       
      Before liability for negligence can occur, a finder of fact must determine whether a reasonable person would be able to anticipate the injury that has occurred to the plaintiff.  That is, would a reasonable person, in a situation similar to the defendant’s situation, been able to foresee that an injury similar to the defendant’s injury would occur.  If the injury is not foreseeable, then the defendant is not liable for the plaintiff’s injury.
       
      

      Example- Chad leaves his skateboard on the stairs that lead to the basement of his home.  Biff, a visitor in Chad’s home, is injured when he steps on the skateboard.  The foreseeability issue is whether a reasonable person could foresee that someone could be injured due to the skateboard being left on the stairs.

       
      

      Example- Al decides to dry his laundry outside in the fresh air.  Al hangs a line ten feet off the ground.  Bill comes to visit Al on his novelty bicycle that is eight feet high and is injured when he is entangled in Al’s laundry.  Al has not failed to provide reasonable care, because it was not foreseeable that somebody would ride an eight-foot bicycle onto his property.

       
      

      Comment- Some professors (and some courts) approach the issue of reasonability from an economic perspective.  To determine what is reasonable, this approach considers the amount of foreseeable damages (in dollars) that could result; call the foreseeable amount of damages "L" (for liability).  Next consider, what is the probability that such damages will occur; call the probability P.  According to this approach a reasonable individual should take all precaution that costs less than P x L.  Please note that this approach is very idealized.  It very often is difficult, if not impossible, to place meaningful values on P and L.

       
      

      Example- Consider the following scenario.  Jimmy is backing out of his driveway.  Foreseeable injuries include hitting a pedestrian, and hitting a car.  For the sake of argument, assume that the maximum amount of injury that could result is $1,000,000.  Also, for the sake of argument, assume that the chance of a $1,000,000 injury occurring is 1%.  Therefore, P x L is $10,000 (that is 1% times $1,000,000).   Now consider precautions that Jimmy can take to avoid injury.  He can look before he proceeds; the cost of looking is much less than $10,000.  Therefore, it is reasonable for Jimmy to look before exiting his driveway.  If Jimmy fails to look both ways and this results in an accident, Jimmy will have failed the duty of reasonable care (i.e., he is negligent) and will be liable for the resulting damage.   Another option for Jimmy to take to avoid injury to others is that he could build his car out of foam rubber.  (Note, although this option is humorous, it makes the point.)  The cost of designing and building such a car is considerably greater than $10,000.  Therefore, in a jurisdiction that employs the economic approach to reasonableness, it is not reasonable to require Jimmy to build his car out of foam rubber.  That is, failure of Jimmy to make his car out of foam rubber is not negligent behavior, and Jimmy would not breach his duty of care if he injured a pedestrian because he failed to make his car out of foam rubber.

       
      
   3. No duty to assist others- generally there is no duty to act to assist others who need assistance.  A failure to assist is not a breach of the duty of reasonable care, and therefore, it is not negligent.
       
      

      Example- A doctor is walking down the street and witnesses a car accident.  The doctor does not have a duty to assist any injured parties.  Failure of the doctor to assist is not negligent behavior.

       
      

      Comment- Although there is no duty to assist others, once an individual begins to assist, they may become liable if they fail to follow through.  Failure to follow through in assisting is known as a "failed rescue."   The duty to follow through with a rescue arises from the idea that other would-be-rescuers may not attempt a rescue if they see someone else attempt the rescue first.  Note that a rescuer may abort the rescue if he finds his own life in peril.  Additionally, some states have "Good Samaritan" statutes that protect medical and rescue personnel from liability in the event that injury to the person being rescued does occur.

       
      

      Exceptions- family members owe other members of their family a "duty of rescue" if the assistance does not endanger the life of the rescuing family member.  Similarly, operators of public transportation, such as airlines, owe customers a duty of rescue.  The reason for holding operators of public transportation liable is that they have taken their customers into their care and have great control over the customer’s surroundings and well being.  (Operators of public transportation are known as "common carriers".)
       
      

   
2. Breach- a breach of the duty of reasonable care results whenever an individual fails to provide reasonable care to foreseeable plaintiff.
    
   
   1. statutes- generally, a finding that a defendant has breached the duty of reasonable care is independent of whether the defendant's activity violated a statute.

   Exceptions- Some jurisdictions provide that a plaintiff has breached a duty of reasonable care if:

   1.  the defendant’s injurious activities violated a statute, and
   2.  the plaintiff was a member of a class that the statute was intended to protect, and
   3.  the injury was of a type that the statute was intended to prevent.
       
      

   Example- A statute prohibits the storing of toxic chemicals in residential neighborhoods.  John stores toxic chemicals in his garage.  One day, one of the storage containers ruptures causing lung injury to John's neighbor Quincy.  A jurisdiction that recognizes the rule that statutes may be used to determine that a duty has been breached will find that John has breached the duty of care to Quincy, because the statute is intended to protect individuals in residential neighborhoods from injuries that would occur if the chemicals were spilled.   By contrast, if the storage container rolled onto Quincy's foot, the statute could not be used to establish that a breach of the duty of reasonable care had occurred because the injury would not be of a type that the statute was intended to prevent. While John could be found to have breached his duty of reasonable care as a result of the rolling container, the statute could not be used to establish that a breach occurred.

    
   
3. Causation- in order for a defendant to be liable for damages he must have "caused" the damage for which the plaintiff seeks compensation. There are two types of causation, both must be proved for liability to result.

 

1. Types of Causation:
    
   
   1. causation in fact- refers to whether the defendant’s actions were the direct cause of injury. That is, "but for" the action of the defendant the damage would not have occurred.
       
      

      Example- Nixon, as a prank, pulls the chair from under Ford as Ford is about to sit down. Ford falls and injures himself. "But for" Nixon pulling the chair out from under Ford, he would not have been injured. Nixon was the cause in fact of Ford’s injury.

       
      
   2. proximate cause- refers to "how closely related" the defendant’s actions were to the damages caused. That is, consider whether it is "just or fair" to hold the defendant liable for the damages caused. Courts have used various tests to determine what is "just," including-
   1.  whether a reasonable person could have foreseen the injury resulting from his actions, or
   2.  whether the injury was a "natural" result of the actions.
       
      

      Example- Nixon, as a prank, pulls the chair from under Ford as Ford is about to sit down. When Ford hits the floor, a rare painting of Washington falls from the wall, resulting in damage to the painting.   While Nixon's prank is likely to be found the causation in fact of the damage to the painting (i.e., "but for" Nixon's actions the painting would not have been damaged), to determine whether Nixon should be held liable for the damage, it must be decided whether Nixon was the proximate cause (i.e., the court must decide if it is "just or fair" to hold Nixon liable for the painting falling off the wall). A court may consider whether a reasonable person could have foreseen that the painting would fall as a result of Nixon's activity. Alternatively, a court may consider whether the damage to the painting was a "natural" result of Nixon pulling the chair out from under Ford.

       
      
2. Proving causation- while causation can be proved by presenting evidence of causation in fact and proximate cause, res ipsa loquitor is one special form of proving causation that is commonly taught in law school.
    
   res ipsa loquitor (pronounced- rez ip’-sa lo’-qwe-tor)- res ipsa loquitor is a method of proving that a defendant breached her duty of care and caused injury that is based purely on circumstantial evidence.  Availability of res ipsa loquitor to prove causation is limited to circumstances where a plaintiff can show:
1.  that the type of injury is of a kind that ordinarily does not occur in the absence of negligent behavior; and
2.  that the defendant was "in exclusive control" of all possible agents and instrumentalities that could cause the accident; and
3.  the accident must not have been due to any voluntary action or contribution on the part of the plaintiff.
Once the plaintiff has proven the elements a), b) and c) the burden of proof shifts to the defendant to present facts that the defendant is not liable.
 


Example- Dr. Vincent performed abdominal surgery on Claude.  Two months after the surgery, Claude discovers that he has a scalpel in his abdomen.  Because he was unconscious during the surgery, Claude does not have direct evidence that Dr. Vincent left the scalpel in his abdomen.  However, Claude will be able to prove that Dr. Vincent breached the duty of reasonable care and caused his injury by using res ipsa loquitor.  At trial, Claude must show that scalpels are not ordinarily left in one’s abdomen without negligent behavior during surgery, and that all possible causes (e.g., doctors or nurses present in the operating room) were under Dr. Vincent’s control.  Finally, Claude must show that the scalpel was not left in his abdomen as a result of Claude's own voluntary activity.  However, because Claude was unconscious during the surgery, he should have no problem proving that the scalpel in his abdomen did not occur as a result of his own voluntary action.  After Claude proves a), b), and c), the burden shifts to the doctor; and to avoid a finding of negligence, the doctor must prove that the scalpel was not left in Claude's abdomen due to his (or his nurses) negligent behavior.  For example, the doctor can prove that no scalpels were used during the surgery.

 

4. Remedies- a plaintiff who has proven that he has been negligently harmed is entitled to a remedy.  Remedies may include legal remedies (i.e., an award of money, referred to as damages)and possibly equitable relief (i.e., a court order, referred to as an injunction).  The following is a discussion of damage awards appropriate in Tort Law.  (Equitable remedies are discussed in greater detail in the Civil Procedure section.)

1. compensatory damages- is an amount of money intended to place an injured party (i.e., the plaintiff) in the position they would have been if the injury had never occurred.
    
   

   Comment- Even in the case that an injured party had a condition that made him susceptible to injury that is in excess of what an ordinary person might incur, the defendant is liable for all injuries that result.  A person having such a condition is said to have an "egg shell cranium."

    
   

   Example- Dorothy is walking down the Wizard’s walkway and steps into a pothole. Dorothy has osteoporosis.  Although a healthy individual would have only sprained their ankle Dorothy breaks her hip.  If a court finds the Wizard negligent, he will be liable for all of Dorothy’s injuries.

    
   
2. punitive damages- is an amount of money awarded to an injured party intended to modify the future behavior of the defendant.  This sum of money is in addition to the compensatory damages.  The amount of money awarded as punitive damages is also intended to make an example of the defendant for all others, and thereby discourage others from acting similarly.
    
   

   Example- Java Hot Coffee Shop sells coffee, which is 190 degrees.  Java Hot has been held liable three times before for injuries resulting from the coffee and many complaints have been filed with Java Hot about the coffee temperature.  Missy buys a cup of coffee from Java Hot.  Missy spills the entire contents of the cup onto her hand and receives third degree burns.  Missy’s total compensatory damages equal $50,000.  In addition to the $50,000, the court awards Missy $8 million dollars.  The $8 million is a punitive award, the purpose of which is to cause Java Hot to lower the temperature of their coffee.

    
   

   Comment- Punitive damages are only awarded in tort law.  There is no award of punitive damages for liability resulting from a contract law breach of contract (also see contract law damages).  Thus, from a plaintiff’s point of view, it is desirable to find that a defendant has acted negligently, rather than merely failed to fulfill a contract promise.

    
   
3. The collateral source rule- money collected by an injured party (i.e., the plaintiff), from sources other than those paying on the defendant’s behalf (i.e., collateral sources), has no bearing on the amount of money that a defendant owes the plaintiff.
    
   

   Example- Cleopatra’s chariot runs over Mark Antony’s foot.  Mark Antony is treated by his doctor and all medical bills are paid by Mark Antony’s insurance (i.e., a collateral source).  Although Mark Antony received money from his own health insurance company, Cleopatra will be responsible for the full amount of Mark Antony’s injury.  Cleopatra, or her insurance company, will be held liable for any damages awarded by a court.

    
   
5. Defenses- the following are some arguments that a defendant may use to avoid liability:
    
   
   1. Superseding Cause- generally, a defendant is liable for all damage that naturally and forseeably results from his negligent behavior.  A "superseding cause" is an intervening event that frees the defendant from liability for damage that occurs subsequent to the superseding event.  Although the defendant remains liable for damages arising before the superseding cause, the defendant is relieved from liability for damages arising after the superseding cause because the court recognizes that it would not be "fair or just" to hold the defendant liable for the damage that follows the superseding event.
       
      Courts deem an event to be a superseding event when the injury following the event ceases "to be of a kind that is a foreseeable result, considering the nature of the defendant's negligent activity".  Generally, intentional torts or criminal acts that occur after the plaintiff's negligent behavior are considered superseding causes, but tortious acts are not necessarily superseding.  For example, a defendant is liable for damage arising from medical malpractice that occurs while a doctor is treating the injured plaintiff.  However, if the ambulance is carjacked on the ride to the hospital, the defendant would not be liable for the injuries arising due to the carjacking.
       
      
   2. Contributory negligence- according to the law of contributory negligence, a finding that the plaintiff, himself, acted negligently is a complete defense to a defendant’s liability.  Even if the defendant was the primary cause of the plaintiff's injury and the plaintiff’s own negligence is minimal, the defendant is not liable.  This defense can result in very harsh results and has been abolished.  In law school, the study of contributory negligence is only an academic matter.
       
      

      Example- Jack was crossing a busy intersection blindfolded.  Jill, while driving through the intersection runs a stop sign and hits Jack.  Even though Jill is at fault, Jack will not receive damages because Jack was negligent in crossing the intersection blindfolded.

       
      
   3. Pure Comparative Negligence- if both a defendant and a plaintiff are found to have acted negligently in causing the plaintiff’s injury, the defendant’s liability is equal to the total amount of damage incurred by the plaintiff multiplied by the percentage of the defendant’s fault.
       
      

      Example- Monroe and Harlowe have an automobile accident.  Monroe sues Harlowe.  Monroe was driving twice the speed limit, and Harlowe failed to look before entering the intersection.  The total injury incurred by Monroe is $100,000.  Monroe is found to be 45% at fault and Harlowe is 55% at fault.  Harlowe is liable for $55,000.  ($100,000 x 55% = $55,000).

       
      
   4. Modified Comparative Fault- a defendant’s liability is equal to the total amount of the plaintiff’s injury multiplied by the percentage of defendant’s fault, unless the plaintiff’s degree of fault exceeds the defendant’s.  If the plaintiff’s degree of fault exceeds the defendant’s, the defendant is not liable for any of the damage.  So modified comparative fault is the same as pure comparative fault, unless the plaintiff was more responsible for his injury than the defendant. If the plaintiff was more at fault, the plaintiff cannot collect damages from the defendant.
       
      

      Example- Gerald is injured when he trips on a crack on Jack’s sidewalk.  At the time of the injury, Gerald was walking blindfolded.  Gerald sues Jack.  The total injury incurred by Gerald is $100,000.  A jury finds that because Gerald’s was walking blindfolded he was 51% at fault for his own injury, and because of the crack in the sidewalk Jack was 49% at fault for Gerald’s injury.  Jack is not liable for any damages because Gerald’s fault, 51%, exceeds Jack’s fault, 49%.

       
      
   5. Assumption of the Risk- if a person knows of a risk and voluntarily agrees not to hold a defendant liable, the defendant is not liable for damages resulting from the risk.
       
      
      1. express assumption of the risk- a person acknowledges a risk and signs a waiver for those risks.  Such a waiver may include a waiver of risks resulting from another’s negligent behavior.
          
         

         Example- Before joining a health club, Sharon signs a waiver that acknowledges that injury can occur in the health club and agreeing not to hold the health club liable for injuries resulting while in the gym.  The waiver expressly states that the health club will not be liable for injuries resulting from the health club’s negligent maintenance of the equipment.  Sharon has expressly assumed the risk of working out in the gym and cannot hold the gym liable for resulting injuries.

          
         

         Comment- The ability to waive the right to sue for the negligent behavior varies from state to state.  Some states require that, if the right to sue for negligence is to be waived, the waiver of negligence must be expressly stated.  And other states do not allow the right to sue for negligence to be waived; in these states, such waivers are deemed void.

          
         
      2. implied assumption of the risk- if a plaintiff has knowledge of a risk, and voluntarily exposes himself to that risk, the plaintiff is foreclosed from obtaining damages resulting from the known risk.
          
         

         Example- Mickey, an experienced skier, skies down a slope having numerous moguls.  Although he has skied the slope numerous times and the slope was no different than he expected, he loses his concentration and injures his knee on one of the moguls.  The company that runs the slope will not be liable for Mickey’s injury because he knowingly and voluntarily engaged in the risk of skiing on the slope.