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Negligence

NEGLIGENCE

Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

In order to establish negligence as acause of actionunder the law oftorts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

The concept of negligence developed under english law. Although English common law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of "duty." For example, innkeepers were said to have a duty to protect the safety and security of their guests.

The concept of negligence passed from Great Britain to the United States as each state (except Louisiana) adopted the common law of Great Britain (Louisiana adopted the civil law of France). Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century. Today negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important concepts in negligence law is the "reasonable person," which provides the standard by which a person's conduct is judged.

The Reasonable Person

A person has acted negligently if she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged. In law, the reasonable person is not an average person or a typical person but a composite of the community's judgment as to how the typical community member should behave in situations that might pose a threat of harm to the public. Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person. For example, a majority of people in a community may jay-walk, but jaywalking might still fall below the community's standards of safe conduct.

The concept of the reasonable person distinguishes negligence from intentional torts such as assault and battery. To prove an intentional tort, the plaintiff seeks to establish that the defendant deliberately acted to injure the plaintiff. In a negligence suit, however, the plaintiff seeks to establish that the failure of the defendant to act as a reasonable person caused the plaintiff's injury. An intoxicated driver who accidentally injures a pedestrian may not have intended to cause the pedestrian's injury. But because a reasonable person would not drive while intoxicated because it creates an unreasonable risk of harm to pedestrians and other drivers, an intoxicated driver may be held liable to an injured plaintiff for negligence despite his lack of intent to injure the plaintiff.

The law considers a variety of factors in determining whether a person has acted as the hypothetical reasonable person would have acted in a similar situation. These factors include the knowledge, experience, and perception of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person's actions.

Knowledge, Experience, and Perception The law takes into account a person's knowledge, experience, and perceptions in determining whether the individual has acted as a reasonable person would have acted in the same circumstances. Conduct must be judged in light of a person's actual knowledge and observations, because the reasonable person always takes this into account. Thus, if a driver sees another car approaching at night without lights, the driver must act reasonably to avoid an accident, even though the driver would not have been negligent in failing to see the other car.

In addition to actual knowledge, the law also considers most people to have the same knowledge, experience, and ability to perceive as the hypothetical reasonable person. In the absence of unusual circumstances, a person must see what is clearly visible and hear what is clearly audible. Therefore, a driver of a car hit by a train at an unobstructed railroad crossing cannot claim that she was not negligent because she did not see or hear the train, because a reasonable person would have seen or heard the train.

Also, a person cannot deny personal knowledge of basic facts commonly known in the community. The reasonable person knows that ice is slippery, that live wires are dangerous, that alcohol impairs driving ability, and that children might run into the street when they are playing. To act as a reasonable person, an individual must even take into account her lack of knowledge of some situations, such as when walking down a dark, unfamiliar corridor.

Finally, a person who undertakes a particular activity is ordinarily considered to have the knowledge common to others who engage in that activity. A motorist must know the rules of the road and a product manufacturer must know the characteristics and dangers of its product, at least to the extent they are generally known in the industry.

Special Skills If a person engages in an activity requiring special skills, education, training, or experience, such as piloting an airplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity. In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. Often persons practicing these special skills must be licensed, such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so, because the public relies on the special expertise of those who engage in such activities. Thus, an unlicensed driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licensed driver.

The law does not make a special allowance for beginners with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it may seem unfair to hold the beginner to the standards of the more experienced person, this standard protects the general public from the risk of a beginner's lack of competence, because the community is usually defenseless to guard against such risks.

Physical Characteristics The law takes a person's physical characteristics into account in determining whether that person's conduct is negligent. Whether a person's conduct is reasonable, and therefore not negligent, is measured against a reasonably prudent person with the same physical characteristics. There are two reasons for taking physical characteristics into account. A physically impaired individual cannot be expected to conform to a standard of conduct that would be physically impossible for her to meet. On the other hand, a physically challenged person must act reasonably in light of her handicap, and she may be negligent in taking a risk that is unreasonable in light of her known physical limitations. Thus, it would be negligent for a blind person to drive an automobile.

Mental Capacity Although a person's physical characteristics are taken into account in determining negligence, the person's mental capacity is generally ignored and does not excuse the person from acting according to the reasonable person standard. The fact that an individual is lacking in intelligence, judgment, memory, or emotional stability does not excuse the person's failure to act as a reasonably prudent person would have acted under the same circumstances. For example, a person who causes a forest fire by failing to extinguish his campfire cannot claim that he was not negligent because he lacked the intelligence, judgment, or experience to appreciate the risk of an untended campfire.

Similarly, evidence of voluntary intoxication will not excuse conduct that is otherwise negligent. Although intoxication affects a person's judgment, voluntary intoxication will not excuse negligent conduct, because it is the person's conduct, not his or her mental condition, that determines negligence. In some cases a person's intoxication is relevant to determining whether his conduct is negligent, however, because undertaking certain activities, such as driving, while intoxicated poses a danger to others.

Children Children may be negligent, but they are not held to the same standard of conduct as adults. A child's conduct is measured against the conduct expected of a child of similar age, intelligence, and experience. Unlike the standard for adults, the standard of reasonable conduct for children takes into account subjective factors such as intelligence and experience. In this sense the standard is less strict than for adults, because children normally do not engage in the high-risk activities of adults and adults dealing with children are expected to anticipate their "childish" behavior.

In many states children are presumed incapable of negligence below a certain age, usually seven years. In some states children between the ages of seven and fourteen years are presumed to be incapable of negligence, although this presumption can be rebutted. Once a person reaches the age of majority, usually eighteen years, she is held to adult standards of conduct.

One major exception to the rules of negligence exists with regard to children. If a child is engaging in what is considered an "adult activity," such as driving an automobile or flying an airplane, the child will be held to an adult standard of care. The higher standard of care imposed for these types of activities is justified by the special skills required to engage in them and the danger they pose to the public.

Emergencies The law recognizes that even a reasonable person can make errors in judgment in emergency situations. Therefore, a person's conduct in an emergency is evaluated in light of whether it was a reasonable response under the circumstances, even though, in hindsight, another course of action might have avoided the injury.

In some circumstances failure to anticipate an emergency may constitute negligence. The reasonable person anticipates, and takes precautions against, foreseeable emergencies. For example, the owner of a theater must consider the possibility of a fire, and the owner of a swimming pool must consider the possibility of a swimmer drowning. Failure to guard against such emergencies can constitute negligence.

Also, a person can be negligent in causing an emergency, even if he acts reasonably during the emergency. A theater owner whose negligence causes a fire, for instance, would be liable for the injuries to the patrons, even if he saved lives during the fire.

Conduct of Others Finally, the reasonable person takes into account the conduct of others and regulates his own conduct accordingly. A reasonable person must even foresee the unlawful or negligent conduct of others if the situation warrants. Thus, a person may be found negligent for leaving a car unlocked with the keys in the ignition because of the foreseeable risk of theft, or for failing to slow down in the vicinity of a school yard where children might negligently run into the street.

Proof of Negligence

In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. The court will instruct the jury as to the standard of conduct required of the defendant. For example, a defendant sued for negligent driving is judged according to how a reasonable person would have driven in the same circumstances. A plaintiff has a variety of means of proving that a defendant did not act as the hypothetical reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that occurred to the plaintiff. Also, a plaintiff might introduce expert witnesses, evidence of a customary practice, or circumstantial evidence.

Statutes Federal and state statutes, municipal ordinances, and administrative regulations govern all kinds of conduct and frequently impose standards of conduct to be observed. For example, the law prohibits driving through a red traffic light at an intersection. A plaintiff injured by a defendant who ignored a red light can introduce the defendant's violation of the statute as evidence that the defendant acted negligently. However, a plaintiff's evidence that the defendant violated a statute does not always establish that the defendant acted unreasonably. The statute that was violated must have been intended to protect against the particular hazard or type of harm that caused injury to the plaintiff.

Sometimes physical circumstances beyond a person's control can excuse the violation of a statute, such as when the headlights of a vehicle suddenly fail, or when a driver swerves into oncoming traffic to avoid a child who darted into the street. To excuse the violation, the defendant must establish that, in failing to comply with the statute, she acted as a reasonable person would have acted.

In many jurisdictions the violation of a statute, regulation, or ordinance enacted to protect against the harm that resulted to the plaintiff is considered negligence per se. Unless the defendant presents evidence excusing the violation of the statute, the defendant's negligence is conclusively established. In some jurisdictions a defendant's violation of a statute is merely evidence that the defendant acted negligently.

Experts Often a plaintiff will need an expert witness to establish that the defendant did not adhere to the conduct expected of a reasonably prudent person in the defendant's circumstances. A juror may be unable to determine from his own experience, for example, if the medicine prescribed by a physician was reasonably appropriate for a patient's illness. Experts may provide the jury with information beyond the common knowledge of jurors, such as scientific theories, data, tests, and experiments. Also, in cases involving professionals such as physicians, experts establish the standard of care expected of the professional. In the above example, the patient might have a physician offer expert testimony regarding the medication that a reasonably prudent physician would have prescribed for the patient's illness.

Custom Evidence of the usual and customary conduct or practice of others under similar circumstances can be admitted to establish the proper standard of reasonable conduct. Like the evidence provided by expert witnesses, evidence of custom and habit is usually used in cases where the nature of the alleged negligence is beyond the common knowledge of the jurors. Often such evidence is presented in cases alleging negligence in some business activity. For example, a plaintiff suing the manufacturer of a punch press that injured her might present evidence that all other manufacturers of punch presses incorporate a certain safety device that would have prevented the injury.

A plaintiff's evidence of conformity or nonconformity with a customary practice does not establish whether the defendant was negligent; the jury decides whether a reasonably prudent person would have done more or less than is customary.

Circumstantial Evidence Sometimes a plaintiff has no direct evidence of how the defendant acted and must attempt to prove his case through circumstantial evidence. Of course, any fact in a lawsuit may be proved by circumstantial evidence. Skid marks can establish the speed a car was traveling prior to a collision, a person's appearance can circumstantially prove his or her age, etc. Sometimes a plaintiff in a negligence lawsuit must prove his entire case by circumstantial evidence. Suppose a plaintiff's shoulder is severely injured during an operation to remove his tonsils. The plaintiff, who was unconscious during the operation, sues the doctor in charge of the operation for negligence, even though he has no idea how the injury actually occurred. The doctor refuses to say how the injury occurred, so the plaintiff will have to prove his case by circumstantial evidence.

In cases such as this, the doctrine of res ipsa loquitur (the thing speaks for itself) is invoked. Res ipsa loquitor allows a plaintiff to prove negligence on the theory that his injury could not have occurred in the absence of the defendant's negligence. The plaintiff must establish that the injury was caused by an instrumentality or condition that was under the defendant's exclusive management or control and that the plaintiff's injury would not have occurred if the defendant had acted with reasonable care. Thus, in the above example, the plaintiff can use res ipsa loquitor to prove that the doctor negligently injured his shoulder.

Duty

A defendant is not liable in negligence, even if she did not act with reasonable care, if she did not owe a duty to the plaintiff. In general, a person is under a duty to all persons at all times to exercise reasonable care for their physical safety and the safety of their property. This general standard of duty may lead to seemingly unjust results. For example, if a property owner leaves a deep hole in her backyard with no warnings or barriers around the hole, she should be liable if her guest falls into the hole. But what if a trespasser enters the backyard at night and falls into the hole? Although the property owner was negligent in failing to guard against someone falling into the hole, it would be unfair to require the property owner to compensate the trespasser for his injury. Therefore, the law states that a property owner does not have a duty to protect a trespasser from harm.

The law uses the concept of duty to limit the situations where a defendant is liable for a plaintiff's injury. Whether a defendant has a duty to protect the plaintiff from harm is a question decided by the court, not the jury. Over time, courts have developed numerous rules creating and limiting a person's duty to others, and sometimes duties are established or limited by statute. Whether the defendant owes the plaintiff a duty depends upon the relationship between the defendant and the plaintiff.

A preexisting relationship can create an affirmative duty to exercise reasonable care to protect another person from harm. For example, an inn has an affirmative duty to protect its guests, a school has a duty to its pupils, a store has a duty to its customers, and a lifeguard has a duty to swimmers.

One always has a duty to refrain from taking actions that endanger the safety of others, but usually one does not have a duty to render aid or prevent harm to a person from an independent cause. A common example of this limitation on duty is the lack of a duty to go to the aid of a person in peril. An expert swimmer with a boat and a rope has no duty to attempt to rescue a person who is drowning (although a hired lifeguard would). A physician who witnesses an automobile accident has no duty to offer emergency medical assistance to the accident victims.

Sometimes a person can voluntarily assume a duty where it would not otherwise exist. If the doctor who encounters an automobile accident decides to render aid to the victims, she is under a duty to exercise reasonable care in rendering that aid. As a result, doctors who have stopped along the highway to render medical assistance to accident victims have been sued for negligence. Many states have adopted "good samaritan" statutes to relieve individuals who render emergency assistance from negligence liability.

Even if a plaintiff establishes that the defendant had a duty to protect the plaintiff from

harm and breached that duty by failing to use reasonable care, the plaintiff must still prove that the defendant's negligence was the proximate cause of her injury.

Proximate Cause

Perhaps no issue in negligence law has caused more confusion than the issue of proximate cause. The concept of proximate cause limits a defendant's liability for his negligence to consequences reasonably related to the negligent conduct. Although it might seem obvious whether a defendant's negligence has caused injury to the plaintiff, issues of causation are often very difficult. Suppose, for example, that a defendant negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a utility pole, resulting in a power outage. Clearly the defendant's negligence has in fact caused both the accident and power outage. Most people would agree that the negligent defendant should be liable for the other driver's injuries, but should he also be liable to an employee who, due to the failure of her electric alarm clock, arrives late for work and is fired? This question raises the issue of proximate cause.

Actually, the term proximate cause is somewhat misleading because as a legal concept it has little to do with proximity (in time or space) or causation. Rather, proximate cause is related to fairness and justice, in the sense that at some point it becomes unfair to hold a defendant responsible for the results of his negligence. For example, Mrs. O'Leary's negligent placement of her lantern may have started the Great Chicago Fire, but it would be unjust to hold her responsible for all the damage done by the fire.

In determining whether a defendant's negligence is the proximate cause of a plaintiff's injury, most courts focus on the foreseeability of the harm that resulted from the defendant's negligence. For example, if a driver negligently drives his automobile, it is foreseeable that he might cause an accident with another vehicle, hit a pedestrian, or crash into a storefront. Thus, the driver would be liable for those damages. But suppose the negligent driver collides with a truck carrying dynamite, causing an explosion that injures a person two blocks away. Assuming that the driver had no idea that the truck was carrying dynamite, it is not foreseeable that his negligent driving could injure a person two blocks away. Therefore the driver would not be liable for that person's injury under this approach. When applying this approach, courts frequently instruct juries to consider whether the harm or injury was the "natural or probable" consequence of the defendant's negligence.

A minority of courts hold the view that the defendant's negligence is the proximate cause of the plaintiff's injury if the injury is the "direct result" of the negligence. Usually a plaintiff's injury is considered to be the direct result of the defendant's negligence if it follows an unbroken, natural sequence from the defendant's act and no intervening, external force acts to cause the injury.

Intervening Cause

Sometimes a plaintiff's injury results from more than one cause. For instance, suppose a defendant negligently injures a pedestrian in an automobile accident. An emergency room doctor negligently treats the plaintiff, aggravating her injury. The doctor's negligence is an "intervening cause" of the plaintiff's injury. A cause of injury is an intervening cause only if it occurs sub-sequent to the defendant's negligent conduct.

Just because an intervening cause exists, however, does not mean that the defendant's negligent conduct is not the proximate cause of the plaintiff's injury. The defendant remains liable if he should have foreseen the intervening cause and taken it into account in his conduct. If a defendant negligently spills a large quantity of gasoline and doesn't clean it up, he will not be relieved of liability for a resulting fire merely because another person causes the gasoline to ignite, because it is foreseeable that the gasoline might be accidentally ignited. Also, it is foreseeable that a sudden gust of wind might cause the fire to spread quickly.

Even if an intervening cause is foreseeable, however, in some situations the defendant will still be excused from liability. If the intervening cause is the intentional or criminal conduct of a third person, the defendant is not liable for this person's negligent conduct. In the example where the defendant spilled gasoline and did not clean it up, he is not responsible for the resulting fire if someone intentionally ignites the gas. Also, sometimes a third person will discover the danger that the defendant created by his negligence under circumstances where the third person has some duty to act. If the third person fails to act, the defendant is not liable. In the gasoline example, suppose the defendant, a customer at a gas station, negligently spills a large quantity of gas near the pumps. The owner of the gas station sees the spilled gasoline but does nothing. The owner of the gas station, not the defendant, would be liable if another customer accidentally ignites the gasoline.

Sometimes, however, a completely unforeseeable event or result occurs after a defendant's negligence, resulting in harm to the plaintiff. An abnormal, unpredictable, or highly improbable event that occurs after the defendant's negligence is known as a "superseding cause" and relieves the defendant of liability. For example, suppose a defendant negligently blocks a road causing the plaintiff to make a detour in her automobile. While on the detour, an airplane hits the plaintiff's car, killing the plaintiff. The airplane was completely unforeseeable to the defendant, and thus he cannot be held liable for the plaintiff's death. The airplane was a superseding cause of the plaintiff's death.

Even great jurists have had difficulty articulating exactly what constitutes proximate cause. Although the law provides tests such as "foreseeability" and "natural, direct consequences," ultimately the issue of proximate cause is decided by people's sense of right and wrong. In the example where the defendant spills gasoline and does not clean it up, most people would agree that the defendant should be liable if a careless smoker accidentally ignites the gasoline, even if they could not articulate that the smoker was a foreseeable, intervening cause of the fire.

Defenses to Negligence Liability

Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty, and proximately caused the defendant's injury, the defendant can still raise defenses that reduce or eliminate his liability. These defenses include contributory negligence, comparative negligence, and assumption of risk.

Contributory Negligence Frequently, more than one person has acted negligently to create an injury. Under the common-law rule of contributory negligence, a plaintiff whose own negligence was a contributing cause of her injury was barred from recovering from a negligent defendant. For example, a driver negligently enters an intersection in the path of an oncoming car, resulting in a collision. The other driver was driving at an excessive speed and might have avoided the collision if she had been driving more slowly. Thus, both drivers' negligence contributed to the accident. Under the doctrine of contributory negligence, neither driver would be able to recover from the other, due to her own negligence in causing the accident.

The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant where the plaintiff is also at fault. However, this doctrine often leads to unfair results. For example, even if a defendant's negligence is the overwhelming cause of the plaintiff's injury, even slight negligence on the part of the plaintiff completely bars his recovery. Also, the negligence of many defendants such as corporations, manufacturers, and landowners creates no corresponding risk of injury to themselves. In such cases the doctrine of contributory negligence, which can completely eliminate the liability for their negligence, reduces their incentive to act safely. As a result, courts and statutes have considerably weakened the doctrine of contributory negligence.

Comparative Negligence Most states, either by court decision or statute, have now adopted some form of comparative negligence in place of pure, contributory negligence. Under comparative negligence, or comparative fault as it is sometimes known, a plaintiff's negligence is not a complete bar to her recovery. Instead the plaintiff's damages are reduced by whatever percentage her own fault contributed to the injury. This requires the jury to determine, by percentage, the fault of the plaintiff and defendant in causing the plaintiff's injury. For example, suppose a plaintiff is injured in an automobile accident and sustains $100,000 in damages. The jury determines that the plaintiff was 25 percent responsible for the accident and that the defendant was 75 percent responsible. The plaintiff will then be allowed to recover 75 percent of her damages, or $75,000.

Most states have adopted the "50 percent rule" of comparative negligence. Under this rule the plaintiff cannot recover any damages if her negligence was as great as, or greater than, the negligence of the defendant. This rule partially retains the doctrine of contributory negligence, reflecting the view that a plaintiff who is largely responsible for her own injury is unworthy of compensation. A minority of states have adopted "pure comparative fault." Under that rule even a plaintiff who is 80 percent at fault in causing her injury may still recover 20 percent of damages, reflecting the defendant's percentage of fault.

Assumption of Risk Under the assumption of risk defense, a defendant can avoid liability for his negligence by establishing that the plaintiff voluntarily consented to encounter a known danger created by the defendant's negligence. Assumption of risk may be express or implied. Under express assumption of risk, persons agree in advance that one person consents to assume the risk of the other's negligence. For example, a skier who purchases a lift ticket at a ski resort usually expressly agrees to assume the risk of any injury that might occur while skiing. Thus, even if the ski resort negligently fails to mark a hazard on a trail resulting in an injury to a skier, the ski resort may invoke the assumption of risk defense in the skier's subsequent lawsuit.

Assumption of risk may also be implied from a plaintiff's conduct. For example, the defendant gives the plaintiff, a painter, a scaffold with a badly frayed rope. The plaintiff, fully aware of the rope's condition, proceeds to use the scaffold and is injured. The defendant can raise the implied assumption of risk defense. This defense is similar to the contributory negligence defense; in the above example, the defendant might also argue that the plaintiff was contributorily negligent for using the scaffold when he knew the rope was frayed.

The implied assumption of risk defense has caused a great deal of confusion in the courts because of its similarity to contributory negligence, and with the rise of comparative fault, the defense has diminished in importance and is viable today only in a minority of jurisdictions.

further readings

Bar-Gill, Oren, and Omri Ben-Shahar. 2003. "The Uneasy Case for Comparative Negligence." American Law and Economics Review 5 (spring).

Buswell, Henry F. 1997. The Civil Liability for Personal Injuries Arising out of Negligence. Littleton, Colo.: F.B. Rothman.

Cupp, Richard L., Jr., and Danielle Polage. 2002. "The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis." New York University Law Review 77 (October).

Henderson, James A., Jr. 2002. "Why Negligence Dominates Tort." UCLA Law Review 50 (December).

cross-references

Alcohol; Automobiles; Good Samaritan Doctrine; Guest Statutes; Last Clear Chance; MacPherson v. Buick Motor Co.; Natural and Probable Consequences; Palsgraf v. Long Island Railroad Company; Product Liability; Rescue; Rylands v. Fletcher; Strict Liability.

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Negligence

41. Negligence

Contributory Negligence

Comparative Fault

Contribution Among Tortfeasors

The State of the Law

Negligence is an actionable tort. This means that if one persons carelessness causes another personal injury, the injured party may sue to recover damages (money) for his or her injuries. The idea that a person can sue for negligence is a relatively new phenomenon, only about a century old.

The reason for negligences late recognition is because common law traditionally recognized only intentional torts; that is, it held parties responsible for injuries that were the result of intentional acts. It was irrelevant that the actor did not intend to injure anyone, much less the injured party, but it only needed to be shown that the actor intended the action that caused the injury. In these cases, evidence of who caused what injury was affirmative, direct, and fairly objective.

The concept of permitting someone to recover damages for injuries caused by someones lack of action or failure to do something was a revolutionary concept. Since its recognition as an action in tort, negligence has become a major source of very large jury awards. It is the root of all product liability cases. When people complain about our legal system and the outrageous verdicts being awarded nowadays, they are speaking about negligence.

Originally, negligence was recognized by the courts as part of the common law. Over time, as causes of action became more numerous and as damages became larger, various efforts were undertaken to limit the appeal of negligence lawsuits.

Contributory Negligence

When contributory negligence first appeared in the repertoire of personal injury lawyers, the standards of proof needed to succeed were quite high and very severe. Originally, under the doctrine of contributory negligence if it were shown that the plaintiff contributed in any way to his injuries, he was barred from any recovery. This has been modified over time to permit the plaintiff to recover even if he contributed to his injuries, as long as his fault is under 50 percent. In these cases, recovery is relative to fault. For instance, if a jury finds a partys injuries worth $100,000 and holds that the party was 25 percent at fault, the partys recovery would be $75,000. On the other hand, if the jury found the party 60 percent at fault, the party would be barred from any recovery.

Comparative Fault

The doctrine of contributory negligence eventually evolved, in some states, into a system of comparative fault that permitted recovery on a completely relative scale. Thus, in an accident one could be 90 percent at fault for ones own personal injury and still sue to recover the 10 percent of the damages suffered that were caused by the other party.

Contribution Among Tortfeasors

In the doctrine of joint and several liability among tortfeasors, when there are multiple tortfeasors (guilty parties), all parties are equally liable for the damages caused to the injured party. This doctrine is quite harsh. For example, if the driver of a truck hits a pedestrian at night and the jury holds that the city is 15 percent responsible because it did not properly maintain the lighting at that portion of the road and the truck driver, who is 85 percent at fault, is uninsured, unemployed, and without assets, the city can be made to pay 100 percent of the damages. Under the doctrine of contribution, one tortfeasor may sue a fellow tortfeasor to recover any damages paid in excess of the proportion of fault. In most comparative fault states liability is the proportionate responsibility of each party.

The State of the Law

As can be seen by looking at the table of negligence laws, there is great diversity among the states as to how negligence is handled. As the law of negligence continues to mature and change, courts have led the way in defining the laws and legislatures have in may cases responded with statutes that both recognize the cause of action and often limit it as well.

There have been many attempts over the years to have Congress or state legislatures pass laws that would specifically limit the amount of recovery available to plaintiffs in negligence actions. So far, none has met with much success. Under the general term tort reform, such acts promise to be proposed in the future.

Table 41: Negligence
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
ALABAMANoneNo Plaintiffs negligence is a bar to recovery. Contributory negligence is an affirmative defense. (ARCP, Rule 8(c)) Jackson v. Waller, 410 So.2d 98 (1982); Williams v. Delta Intl Machinery Corp., 619 So.2d 1330 (Ala.1993)NoNo. Gobble v. Bradford, 147 So. 619 (1933); But yes if executed instrument with joint payees or indorsers, §7-3-116
ALASKA23.25.010 (Employers liability for negligence)NoYes, §09.17.060 Contributory fault diminishes proportionately the award based on claimants fault, but does not bar recovery (Pure comparative negligence) Kaatz v.Alaska, 540 P.2d 1037 (1975); Pure form adopted and codified hereinYes; §09.17.080(d)
ARIZONA12-2505Yes; §12-2501, et seq.No right to comparative negligence if claimant intentionally, wilfully or wantonly caused/contributed to injury or wrongful death §12-2505(A)  Yes; §12-2501, et seq.
ARKANSAS16-64-122Yes; 16-61-201 to 212 If Plaintiffs fault is of less degree than defendants, he may recover amount diminished in proportion to degree of his own fault; if plaintiffs fault is equal to or greater than defendant, he may not recover at all (§16-64-122) Yes; §§16-61-201 to 212
CALIFORNIACiv. §1714NoPure form adopted by Li v. Yellow Cab Co., 532 P.2d 1226 (1975). Li v. Yellow Cab Co., 532 P.2d 1226 (1975).Yes; (Civ.§1431.2) liability of each defendant per non-economic damages shall be several only and not joint.
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
COLORADO13-21-111Yes. §§13-50.5-101 to 13.50.5-106 Contributory negligence does not bar recovery if claimants negligence is not greater than defendants. But any damages allowed is diminished in proportion to claimants attributed negligence (13-21-111) Yes; §§13-50.5-101 to 13.50.5-106
CONNECTICUT52-572h  Comparative negligence does not bar recovery if claimants negligence is not greater than combined negligence of defendant(s). However, damages are diminished in proportion to attributed negligence (§52-572h) Yes; §52-572e; also §52-572h. Must be brought within one year
DELAWARETit. 10 §8132Yes; Tit. 10 §§6301 to 6308 Claimants contributory negligence does not bar recovery if such negligence is not greater than the defendant(s) negligence. But any awarded are diminished in proportion to claimants attributed negligence (Tit. 10 §8132) Yes; Tit. 10 §§6301 to 6308
DISTRICT OF COLUMBIANone  Plaintiffs negligence is a bar to recovery except the liability of common carriers for injuries to employees, when plaintiffs negligence is slight and employers is gross. See §35-302 No
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
FLORIDA768.81Yes; §768.31Any contributory fault chargeable to claimant diminishes proportionately the amount awarded as economic or uneconomic damages; §768.81 Hoffman v. Jones, 280 So. 2d 431 (1973)Yes; §768.31
GEORGIA51-11-7No Claimants contributory does not bar recovery provided his fault is less than defendants and that by ordinary care claimant could not have avoided the consequences of defendants negligence. However claimants damages are diminished by amount in proportion to the amount of his fault. (§51-11-7) Yes; §51-12-32
HAWAII663-31Yes; §§663-11 to 663-17 Contributory negligence or comparative responsibility does not bar recovery if claimants negligence or comparative responsibility is not as great as defendants, but any damages are diminished in proportion to the negligence or comparative responsibility attributable to claimant (§663-31) Yes; §§663-11 to 663-17
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
IDAHO6-801No Contributory negligence or comparative responsibility does not bar recovery if claimants negligence or comparative responsibility is not as great as defendants, but any damages are diminished in proportion to the negligence or comparative responsibility attributable to claimant (§6-801) Yes; §6-803.
ILLINOIS735 ILCS 5/2-1116No Over 50% recovery barred; under 50% damages diminished in proportion to plaintiffs percentage of fault Yes; 740 ILCS 100/0.01, et seq.
INDIANA34-51-2-5, et seq.No Recovery barred if contributory negligence was greater than defendants negligence, otherwise reduces recovery proportionately  
IOWA668.3; 668.5No Contributory fault does not bar recovery unless claimants fault is greater than defendants, but any damages diminished in proportion to attributable fault.Goetzman v. Wichern, 327 N.W. 2d 742 (1982)Yes, §668.5
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
KANSAS60-258aNo Contributory negligence not a bar to recovery if claimants negligence is less than causal negligence of defendants, but damages diminished in proportion to the amount of attributable negligence. (§60-258a)  
KENTUCKY411.182NoFailure to put child in safety restraint is statutorily not contributory negligence (§189.125). Percentage of fault of claimant is used to offset recovery by equal measure; pure comparative negligenceEmployee not guilty of contributory negligence where violation by carrier of state/federal safety statute contributed to injury or death. In the case were no safety statute has been violated, contributory negligence is not a bar to recovery, but damages diminished in proportion to the amount of attributable negligence. (277.320) Yes; §412.030
LOUISIANACiv. Code Art 2323NoPercentage of fault of all persons contributing is determined. If person who suffers as a result partly of his own negligence, the amount of damages reduced in proportion to% of attributable negligence.  No
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
MAINETit. 14 §156No. Claim in respect of death or damage not defeated by reason of fault the person suffering the damage, but damages reduced to extent jury thinks just and equitable. If plaintiffs fault is 50% or more, recovery is barred. No
MARYLANDNone Not using seatbelt is not contributory negligence (Transp. §§22-412.3 & 4)  Yes; C & JP §3-1401
MASSACHUSETTSCh. 231 §85Ch. 231B §§1-4 Contributory negligence does not bar recovery if claimants negligence is not greater than defendants. But any damages allowed is diminished in proportion to claimants attributed negligence Ch. 231B §§1-4
MICHIGAN600.2958, 600.2959 For economic damages, award is reduced proportionately to plaintiffs negligence even if greater than 50%. For non-economic damages, negligence greater than 50% bars any recovery. (§600.2959)  Yes; 600.2925c
MINNESOTA604.01, et seq.  Plaintiffs negligence reduces recovery proportionately, but if greater than 50%, recovery is barred No
MISSISSIPPI11-7-15NoContributory negligence no bar to recovery, but damages diminished in proportion to the amount of attributable negligence.  No.
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
MISSOURINone In products liability cases, comparative fault is an affirmative defense. Fault shall diminish damages proportionately but does not bar recovery (537.765)  Yes; §537.060
MONTANA27-1-702No Claimants negligence does not bar recovery if less than that of defendants. Damages diminished in proportion to the amount of negligence attributable. Yes; §27-1-703
NEBRASKA25-21, 185.07 to 185.12  Plaintiffs award diminishes proportionally with negligence, but negligence equal to or greater than defendants is a total bar. (§25-21, 185.09) No; see §25-21, 185.10
NEVADA41.14117.225 to 17.305 When claimants negligence is greater than defendants, no recovery, otherwise proportionate to fault. Yes; §§17.225 to 17.305
NEW HAMPSHIRE507:7-dNo Contributory negligence does not bar recovery if claimants negligence is not greater than defendants. But any damages allowed is diminished in proportion to claimants attributed negligence. Yes; §507.7-f
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
NEW JERSEY2A:15-5.1, et seq.  Contributory negligence cannot be greater than the negligence of defendants. Damages diminished by the percentage sustained of negligence attributable to claimant. Yes; 2A:15-5.3
NEW MEXICONone41-3-1 to 41-3-8Pure comparative negligence Scott v. Rizzo, 634 P.2d 1234 (1981)Yes; §§41-3-1 to 41-3-8
NEW YORKCiv. Prac. L. & R. §§1411, et seq. Contributory negligence does not bar recovery but damages are diminished in proportion to the attributable conduct.  Yes; Civ. Prac. L. & R. §§1401 et seq.
NORTH CAROLINANone§1B-1 to 1B-6 Not specified Yes; §§1B-1 to 1B-6
NORTH DAKOTANone32-38-01 to 04 Plaintiffs negligence diminishes recovery in proportion to fault, but if greater then 50%, recovery is completely barred. Yes; §§32-38-01 to 04
OHIO2315.192307.31, 2307.33 Contributory negligence not a bar recovery if negligence was not greater than combined negligence of persons claimant seeks recovery and all other persons claimant does not seek recovery. Damages diminished in proportion to claimants fault. Yes; §§2307.31, 33
OKLAHOMATit. 23 §13-14Tit. 12 §832 Contributory negligence cannot be greater than negligence of defendants. Damages reduced in proportion to such persons contributory negligence. Yes; Tit. 12 §832
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
OREGON31.600, 31.605No Contributory negligence not a bar if fault attributable claimant is less than combined fault of defendants. Yes; 31.800
PENNSYLVANIATit. 42 §7102Tit. 42 §§8321-8327 Contributory negligence does not bar recovery if claimants negligence is not greater than defendants. But any damages allowed is diminished in proportion to claimants attributed negligence. Yes; Tit. 42 §§8321-8327
RHODE ISLAND9-20-4§§10-6-1 to 11The fact that the claimant was not in the exercise of due care shall not bar recovery, but damages diminished in proportion to the amount of attributable negligence.  Yes; §§10-6-1 to 11
SOUTH CAROLINANone§§15-38-10 to 70Exists only for motor vehicle accidents (§15-1-300)Not specified. Yes; §§15-38-10 to 70
SOUTH DAKOTA20-9-215-8-11, et seq. Plaintiffs negligence diminishes recovery proportionately, but if more than slight, recovery is completely barred (§20-9-2) Yes; §§15-8-11 to 22
TENNESSEENone29-11-101, et seq.Comparative negligence in reference to reviewing bank statements of accts. 47-4-406.See comparative negligence. Yes; §§29-11-101 to 106
TEXASCiv. Prac. & Rem. §33.001No Plaintiffs negligence not greater than defendants; award diminished in proportion to negligence (Civ. Prac. & Rem.§33.001) Yes; Civ. Prac. & Rem. §33.012
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
UTAH78-27-37, et. seq.No If exceeds 50%, no recovery; otherwise diminished proportionately No; §78-27-40
VERMONTTit. 12 §1036  Contributory negligence not a bar if negligence was not greater that causal total negligence but damages diminished in proportion to the amount of attributable negligence. No
VIRGINIA8.01-58 (Contribu-tory negligence is no bar to recovery in certain employee-railroad disputes.)NoIn an action against a common carrier, comparative negligence will not bar recovery and if carrier violated a safety code, the injured party wont be found comparatively negligent (8.01-58)  8.01-34; Contributory negligence may be applied when the wrong results from negligence and involves no moral turpitude
WASHINGTON4.22.005 to 925Yes; 4.22.005 to 925Contributory fault diminishes proportionately the amount of damages, but does not bar recovery.  Yes; §4.22.040
WEST VIRGINIANoneNoComparative negligence is reference to discovering and reporting unauthorized signature or alteration-bank statements (§46-4-406). Otherwise not specified.Not specified.Bradley v.Appalachian Power Co., 256 S.E.2d 879 (1979), at 885.Yes; §55-7-13
WISCONSIN895.045No Contributory negligence is not a bar if claimants negligence is not greater than defendants. Damages diminished in proportion to claimant attributable negligence. Yes; common law right based on equitable principles (State Farm Mutual Auto Ins. v.Continental Cas. Co., 59 N.W. 2d 425)
StateCode SectionUniform ActComparative NegligenceContributory NegligenceLimit to Plaintiffs RecoveryJudicial Imposition ofComparative NegligenceContribution Among Tortfeasors
WYOMING1-1-109No Contributory fault shall not bar recovery if fault is not more than 50% of the total fault of all actors. Damages diminished in proportion to the amount of fault attributable to claimant. No

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negligence

negligence, in law, especially tort law, the breach of an obligation (duty) to act with care, or the failure to act as a reasonable and prudent person would under similar circumstances. For a plaintiff to recover damages, this action or failure must be the "proximate cause" of an injury, and actual loss must occur. Among possible defenses to a negligence action are that the plaintiff assumed the risk of injury (e.g., of being hit by a batted ball at a baseball game), or that the plaintiff brought on the injury by his or her own negligence. Most negligent acts are inadvertent; between them and fully intentional acts lie forms of conduct variously termed willful, wanton, or reckless. Deliberate judgments that are dangerously careless (e.g., faulty building design) may, however, be considered acts of negligence.

The obligation to act with care may arise out of a relationship established by contract, as in the duty assumed by a common carrier (e.g., a railroad) in preserving goods and passengers from damage or injury. But the law also supposes that all persons in the ordinary course of conduct have a duty to avoid inflicting injuries on others. In all noncontractual situations this duty is to act as a "reasonable, prudent person" would act. Injury that results despite such conduct or from circumstances beyond human control (see, e.g., act of God) is not compensable, although the doctrine of strict liability makes those engaged in certain trades and services liable despite non-negligent conduct.

It is usually the function of a jury to determine whether negligence occurred, and the obligation of the plaintiff to demonstrate the defendant's negligence by a preponderance of the evidence. On the other hand, in cases where due care must have been absent (e.g., where a drink bottled at the defendant's plant contains a dead mouse), the judge may apply the doctrine of res ipsa loquitur [Lat.,=the thing speaks for itself] and rule that there was negligence as a matter of law; this obliges the defendant to demonstrate the absence of negligence. In cases where both parties share responsibility for negligence, the law allows reduced damages based on the doctrine of comparative negligence. Thus, a driver who ignored a red light might not recover fully for an injury caused by another driver who was speeding through the intersection; responsibility might instead be assigned, for instance, as belonging 70% to the speeder and 30% to the ignorer of the traffic signal, whose damages for injury would be limited by subtraction from a full recovery.

Negligence law has been of great importance to consumer groups, who have won huge awards of actual and punitive damages, especially from the manufacturers of various goods. In the 1990s business groups and their congressional allies have pushed for federalization of U.S. negligence law, with statutory limitation of forms of damages, arguing that almost all commerce is now interstate and that the threat of large damage awards has been inhibiting American enterprise. Opponents respond that negligence has historically been one of few legal actions useful to the relatively powerless in American society, and that business has not suffered as it claims.

At common law, the right to recover for negligence belonged to the injured party only; his or her death terminated a lawsuit, and heirs might not recover. Today, all jurisdictions have statutes permitting heirs to bring suit for wrongful death and for injuries to the deceased. Negligence claims are the chief source of modern civil litigation. Most cases arise from vehicular traffic accidents; the widespread adoption of no-fault insurance may, however, reduce the role of negligence law in the future. Besides its civil aspects, negligence may also be an aspect of a criminal prosecution, if it results in manslaughter or if it is a serious breach of a public duty (e.g., carelessness by the engineer of a train). In medical, psychotherapeutic, legal, and other professional relationships, negligence, which is measured against generally accepted knowledge and practice standards, is called malpractice.

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negligence

negligence (neg-li-jĕns) n. failure by a health professional to exercise a reasonable standard of care, as defined in the UK until recently by the Bolam test. In order to establish negligence a claimant must show that the professional had a duty of care, that he or she breached this duty, and that harm was caused as a result.

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negligence

neg·li·gence / ˈnegləjəns/ • n. failure to take proper care in doing something: some of these accidents are due to negligence. ∎ Law failure to use reasonable care, resulting in damage or injury to another.

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negligence

negligence In law, failure to exercise reasonable care towards material goods, other people or oneself, resulting in unintentional harm. Most cases involving negligence are decided by a jury.

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negligence

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Negligence

Negligence

Sections within this essay:

Background
Standards of Care
Reasonable Person
Standards of Care for Children

Elements of a Negligence Case
Duty
Breach of Duty
Cause in Fact
Proximate Cause
Damages

Proof in a Negligence Case
Negligence Per Se
Specific Duties
Duty to Rescue
Duty to Control
Duty to Protect

Professional Malpractice
Premises Liability
Products Liability
Defenses in Negligence Actions
Comparative Fault
Assumption of the Risk

Additional Resources
Organizations
Association of Trial Lawyers of America
National Association of Personal Injury Lawyers
American Bar Association

Background

The law of negligence requires that persons conduct themselves in a manner that conforms with certain standards of conduct. Where a person's actions violate those standards, the law requires the person to compensate someone who is injured as a result of this act. In some instances, the law of negligence also covers a person's omission to act.

In tort law, negligence is a distinct cause of action. The Restatement (Second) of Torts defines negligence as "conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm." Negligence generally consists of five elements, including the following: (1) a duty of care owed by the defendant to the plaintiff ; (2) a breach of that duty; (3) an actual causal connection between the defendant's conduct and the resulting harm; (4) proximate cause, which relates to whether the harm was foreseeable; and (5) damages resulting from the defendant's conduct.

In some instances, a statute or other law may define specific duties, such as the duty of a person to rescue another. Professionals, such as doctors and lawyers, are also required to uphold a standard of care expected in their profession. When a professional fails to uphold such a standard of care, the professional may be liable for malpractice, which is based on the law of negligence.

Standards of Care

The standard of care required in negligence law typically relates to a person's conduct, rather than a person's state of mind. In most instances, a defendant is required to exercise the same "ordinary care" or "due care" that a reasonable person would exercise in the same or similar circumstances. Negligence cases often focus on the reasonableness requirement.

Reasonable Person

The so-called reasonable person in the law of negligence is a creation of legal fiction. Such a "person" is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circum-stances. The test as to whether a person has acted as a reasonable person is an objective one, and so it does not take into account the specific abilities of a defendant. Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence.

A jury generally decides whether a defendant has acted as a reasonable person would have acted. In making this decision, the jury generally considers the defendant's conduct in light of what the defendant actually knows, has experienced, or has perceived. For example, one may consider a defendant working on a loading dock and tossing large bags of grain onto a truck. In the process of doing this, the defendant notices two children playing near the truck. The defendant throws a bag towards the truck and unintentionally strikes one of the children. In this instance, a jury would take into account the defendant's actual knowledge that children were playing in the area when the jury determines whether the defendant acted reasonably under the circumstances. One must note, however, that the defendant would be liable for negligence only if the defendant owed a duty to the child.

In addition to the defendant's actual knowledge, a jury also considers knowledge that should be common to everyone in a particular community. Accordingly, the defendant in the example above would be charged with knowing that a bag of grain could injure a child, as well as with knowing the natural propensities of children.

Standards of Care for Children

A child generally is not expected to act as a reasonable adult would act. Instead, courts hold children to a modified standard. Under this standard, a child's actions are compared with the conduct of other children of the same age, experience, and intelligence. Courts in some jurisdictions, however, apply the adult standard of care to children who engage in certain adult activities, such as snowmobiling.

Elements of a Negligence Case

Duty

The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.

In the example above involving the defendant loading bags of grain onto a truck, the first question that must be resolved is whether the defendant owed a duty to the child. In other words, a court would need to decide whether the defendant and the child had a relationship such that the defendant was required to exercise reasonable care in handling the bags of grain near the child. If the loading dock were near a public place, such a public sidewalk, and the child was merely passing by, then the court may be more likely to find that the defendant owed a duty to the child. On the other hand, if the child were trespassing on private property and the defendant did not know that the child was present at the time of the accident, then the court would be less likely to find that the defendant owed a duty.

Breach of Duty

A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.

Cause in Fact

Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's actions actually caused the plaintiff's injury. This is often referred to as "but-for" causation. In other words, but for the defendant's actions, the plaintiff's injury would not have occurred. The child injured by the defendant who tossed a bag of grain onto a truck could prove this element by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.

Proximate Cause

Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's damages.

In the example described above, the child injured by the bag of grain would prove proximate cause by showing that the defendant could have foreseen the harm that would have resulted from the bag striking the child. Conversely, if the harm is something more remote to the defendant's act, then the plaintiff will be less likely to prove this element. Assume that when the child is struck with the bag of grain, the child's bicycle on which he was riding is damaged. Three days later, the child and his father drive to a shop to have the bicycle fixed. On their way to the shop, the father and son are struck by another car. Although the harm to the child and the damage to the bicycle may be within the scope of the harm that the defendant risked by his actions, the defendant probably could not have foreseen that the father and son would be injured three days later on their way to having the bicycle repaired. Hence, the father and son could not prove proximate causation.

Damages

A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.

Proof in a Negligence Case

A negligence case is usually proven through one of two types of evidence: direct and circumstantial. Evidence derived from the personal knowledge of a witness or from images in a photograph or video constitutes direct evidence. Circumstantial evidence, by comparison, requires a fact-finder to draw an inference based on the evidence that has been produced.

Courts have formulated special rules that govern proof in specific instances. In a slip-and-fall case, where a plaintiff's injury occurs when the plaintiff slips and falls due to a condition on the defendant's property, courts require the plaintiff to prove that the condition existed for such a length of time that the defendant should have discovered and remedied the condition. Thus, a plaintiff who sues a supermarket when she slips on spilled liquid laundry soap could not recover from the supermarket without showing that the liquid had been on the floor long enough for the supermarket to have discovered it. Evidence that the soap was smeared across the floor due to the number of customers walking on the liquid may be sufficient proof in this type of case.

A plaintiff in some instances may rely on the doctrine of res ipsa loquitur, which is Latin for "the thing speaks for itself." This doctrine allows a jury to infer that a defendant acted negligently, even without other proof of misconduct. In order for this doctrine to apply, the plaintiff must prove that the event that occurred usually does not happen in the absence of negligence and that the defendant had exclusive control of the instrument that caused injury. For example, the child who was injured by the bag of grain on a public sidewalk may not have any direct or circumstantial proof that the defendant was negligent in handling the bag. However, a bag of grain typically does not fly onto a public sidewalk in the absence of negligence, and the defendant had exclusive control over the bag at the time of the accident. In this instance, the jury may infer negligence on the part of the defendant by employing res ipsa loquitur.

Negligence Per Se

In some instances, a plaintiff in a negligence action may rely on a statute to prescribe a certain standard of care. Under the doctrine of negligence per se, a standard of conduct required under a statute is adopted by a court as defining the conduct of a reasonable person. In other words, rather than asking a jury what a reasonable person would have done under certain circumstances, the statute establishes what a reasonable person would have done under those circumstances. A statutory violation under this rule is conclusive on the issue of whether the defendant violated a standard of care.

Specific Duties

Courts have developed special rules regarding the duty that a defendant may have in a specific case. Where a duty does exist, it is based on specific circumstances or the nature of the relationship between the parties.

Duty to Rescue

The general rule is that a person has no duty to rescue another person who is in peril. Even in an ex-treme situation, such as where an adult sees a child trapped on top of railroad tracks, courts generally hold that a person is under no duty to come to the aid of another. Courts, however, recognize several exceptions. These include the following:

  • The Defendant Created the Peril: Where the defendant's negligence created the need for the plaintiff to be rescued, the defendant is generally under a duty to rescue the plaintiff.
  • Undertaking to Act: If a defendant begins to rescue a person but then stops, in some instances the defendant may be under a duty to continue the rescue. Most courts require that the defendant act reasonably once the rescue has begun. If a reasonable person would have continued to rescue the victim, then the defendant may have been under a duty to continue the rescue.
  • Special Relationship: A defendant may have the duty to rescue a person where the defendant has a special relationship with the victim, such as in an employer-employee or a school-student relationship.

Duty to Control

A person generally has no duty to control the actions of another person. However, in some relationships, this duty may arise. The most common example involves a parent and child. If a parent is aware of a child's dangerous propensities, then the parent is generally under a duty to exercise reasonable care in controlling the child.

Duty to Protect

A defendant may have a duty to protect a plaintiff based on the defendant's relationship with the plaintiff. This most clearly applies in cases involving jailors and prisoners or innkeepers and guests. Some courts have imposed a duty to protect based on other relationships, including landlord-tenant and business-patron relationships, but the law is less clear about duties in these instances.

Professional Malpractice

Members of certain professions, such as doctors, lawyers, and accountants, may be liable for professional negligence, also known as malpractice. Professional negligence occurs when a professional fails to exercise a degree of care that is exercised by well-qualified professionals in the same field. This standard is based on how well-qualified professionals ordinarily and customarily perform, rather than on how reasonable professionals should have performed.

Premises Liability

One of the more complex areas of law related to negligence focuses on the standard of care that a land possessor owes to a person injured on the land. In some jurisdictions, the law requires the possessor of the land to act reasonably in the maintenance of his or her land. In other jurisdictions, whether the person who is injured may recover from the land possessor depends on the person's status when he or she was on the property.

If a person is invited onto a property, the land possessor is generally obligated to exercise some care with respect to the person's safety. At the least, the land possessor must warn the person about dangers that are present on the property. A possessor of land does not, however, owe a duty to a person who enters the land without the occupier's permission. Possible exceptions to the rule regarding trespassers apply when the trespasser frequently enters the land or when the trespasser is a child.

Products Liability

Another distinct area of law related to negligence is products liability. A person may bring a products liability action when the person suffers physical harm as a result of an unsafe product. In this type of suit, the injured person attempts to prove that the manufacturer of the product is at fault for the unsafe condition of the product. One basis for proving that the manufacturer is at fault is by proving that the manufacturer was negligent in the production or distribution of the product. Where a products liability suit is based on allegations of negligence, the plaintiff must prove that the manufacturer failed to exercise reasonable care in the design or manufacturing of a product or failed to provide adequate warnings regarding potential dangers associated with the product.

Defenses in Negligence Actions

A defendant in a negligence suit typically tries to negate one of the elements of the plaintiff's cause of action. In other words, the defendant introduces evidence, for example, that he or she did not owe a duty to the plaintiff, exercised reasonable care, did not cause the plaintiff's damages, and so forth. In addition to negating one or more of these elements, a defendant may rely on one of a few doctrines that may eliminate or limit liability based on alleged negligence. Two of the more common doctrines are comparative fault and assumption of the risk.

Comparative Fault

Under traditional tort law, a defendant could avoid liability by proving contributory negligence on the part of the plaintiff. Contributory negligence occurs when a plaintiff's conduct falls below a certain standard necessary for the plaintiff's protection, and this conduct cooperates with the defendant's negligence in causing harm to the plaintiff. Where the plaintiff's negligence for his or her own protection is the cause-in-fact and proximate cause of the plaintiff's damages, then the doctrine of contributory negligence would bar recovery.

Contributory negligence has led to harsh results in some cases, and the vast majority of states have replaced the doctrine with an alternative called comparative negligence. The doctrine of comparative negligence reduces a plaintiff's recovery by the percentage in which the plaintiff is at fault for his or her damages. A majority of states have modified this rule, barring a plaintiff from recovering if the plaintiff is as much at fault (in some states) or more at fault (in other states) than the defendant.

Assumption of the Risk

Another defense that traditionally has barred recovery for a plaintiff applies when a plaintiff has assumed the risk involved in an obviously dangerous activity but proceeded to engage in the activity anyway. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. An example might involve an amusement park ride that flips passengers completely upside-down. A passenger who saw the ride and knew what would happen on the ride assumed the risks associated with the ride. On the other hand, a plaintiff does not assume the risk of something unexpected related to the ride, such as where a loose bolt causes the ride to throw the plaintiff in a violent manner.

Additional Resources

The Law of Torts. Dobbs, Dan B., West Group, 2000.

Principles of Tort Law. Shapo, Marshall S., Thomson/West, 2003.

Torts in a Nutshell. Kionka, Edward J., Thomson/West, 2005.

Understanding Torts. 2d Edition. Diamond, John L., Lawrence C. Levine, and M. Stuart Madden, Lexis Publishing, 2000.

Organizations

Association of Trial Lawyers of America

1050 31st Street, NW
Washington, DC 20007 USA
Phone: (800) 424-2725
URL: http://www.atla.org/

National Association of Personal Injury Lawyers

23945 Calabasas Rd. Suite 106
Calabasas, CA 91302 USA
URL: http://www.napil.com/

American Bar Association

321 North Clark Street
Chicago, IL 60610 USA
Phone: (312) 988-5000
URL: http://www.abanet.org

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Negligence

Negligence

Norfolk Southern Railway Company v. Sorrell

Working for a railroad in the early Twentieth Century was a very dangerous occupation. Workers injured on the job faced numerous legal hurdles if they attempted to sue railroads for negligence. A Nineteenth-Century legal doctrine called assumption of risk held that workers who knowingly went to work in a dangerous industry could not sue their employers for damages. Even if a court of law ignored the assumption of risk doctrine a worker could lose if the employer proved that the worker contributed to the negligent action. It did not matter if the employee was only 5 percent negligent because such a finding barred the worker from recovering any damages. Public concern over number and severity of railroad employee uncompensated injuries led Congress in 1908 to enact the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§51-60. FELA established a compensation scheme for railroad workplace injuries and pre-empted state tort remedies. The common-law assumption of risk doctrine was abolished and contributory negligence was replaced with comparative negli-gence. Workers who were negligent would have the damages award reduced by the proportion of their fault. FELA provisions have been litigated for almost one hundred years and the Supreme Court issued another FELA ruling in Norfolk Southern Railway Company v. Sorrell, ___U.S.___, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), holding that the state of Missouri had improperly provided a more lenient causation standard for railroad negligence than for employee comparative negligence. The Court ruled that the FELA causation standard must be the same for both categories of negligence.

Timothy Sorrell injured his back and neck while working as a trackman for the Norfolk Southern Railway Company. In 1999 Sorrell was working for Norfolk in Indiana, driving a dump truck filled with asphalt to be used to repair railroad crossings. While driving on a gravel road between crossings another Norfolk dump truck approached Sorrell's truck. Sorrell and the driver of the other truck gave different accounts of what happened next but Sorrell's truck veered off the road and tipped on it side. Sorrell testified that the other driver forced him off the road, while the other driver said Sorrell drove his truck into the ditch.

In 2002 Sorrell filed suit in Missouri state court under FELA, which makes railroads liable to their employees for injuries "resulting in whole or part from the negligence" of the railroad. Sorrell alleged that Norfolk had failed to provide him with a reasonably safe place to work and that its negligence caused his injuries. Norfolk countered by claiming Sorrell's own negligence caused his injuries. When the time came for the judge to issue jury instructions a legal controversy arose. Under Missouri law a jury was to apply two different standards of causation to railroad and employee contributory negligence. The instructions directed the jury to find an employee contributory negligent if the employee was negligent and his negligence "directly contributed to cause" the injury. The jury was also instructed to find the railroad negligent if the railroad was negligent and its negligence contributed "in whole or in part" to the injury. Norfolk objected to these instructions, arguing that the same causation standard should be applied to employee and employer, for the standard applied to the railroad was a "much more exacting" standard. The judge overruled the objection and Sorrell recovered $1.5 million in damages. Norfolk appealed but the Missouri Court of Appeals affirmed the dual causation standards. After the Missouri Supreme Court rejected Norfolk's petition to appeal Norfolk petitioned the U.S. Supreme Court. Norfolk argued that Missouri was the only jurisdiction to apply different standards. The Supreme Court granted review.

The Supreme Court, in a unanimous decision, overturned the Missouri appeals court decision. Chief Justice John Roberts, writing for the Court (four justices joined in concurring opinions), rejected Norfolk's attempt to broaden the question before the Court to include what the standard of causation under FELA should be. Norfolk not only sought to enlarge the question but it took a position that was contrary to the position it took in the Missouri courts. In the lower courts Norfolk urged that the less rigorous negligence standard applied to railroads be applied to employee negligence. Before the U.S. Supreme Court Norfolk urged the Court to apply the more rigorous contributory negligence standard to the railroad's negligence as well. Chief Roberts concluded that "we should stick to the question on which certiorari was sought and granted," for the Court is reluctant to let parties "smuggle additional questions into the case."

Turning to the issue of dual standards of negligence, Chief Justice Roberts agreed with Norfolk that Missouri was the only jurisdiction to apply differing causation standards in a FELA action. Though it was possible that "everyone is out of step except Missouri," Roberts found that Congress did not intend to allow disparate causation standards. Common-law principles that have not been expressly rejected under FELA are given "great weight" by the Court in analyzing issues. In this case the common law applied the same causation to defendant and plaintiff negligence and FELA "did not expressly depart from this approach." Roberts thought that allowing more than one standard of causation would have been a "peculiar approach for Congress to take in FELA." Moreover, as a practical matter it would be difficult to reduce damages "in proportion" to the employee's negligence if "the relevance of each party's negligence to the injury is measured by a different standard of causation." It would be simpler for the jury to apportion negligence if "the jury compares like with like-apples to apples." Other courts supported this position, leading the Supreme Court to reject Missouri's "idiosyncratic approach" that "unduly muddies what may, to a jury, be already murky waters."

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Negligence

NEGLIGENCE

Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstance.

Ford Held Liable in Explorer Rollover Case

In June 2004, a jury ordered the Ford Motor Company to pay a California woman $369 million dollars in damages that she had sustained in a roll-over accident in her Ford Explorer. The verdict, one of the largest-ever awards of its kind, came from a San Diego County jury. The trial judge later reduced the amount of the award to $150 million.

This was the first loss for Ford after winning more than a dozen Explorer rollover cases. The company has settled many other such cases. Ford, the country's second largest automaker, has sold more than five million Explorers since 1990. The Explorer is the best-selling sport utility vehicle (SUV) in the United States.

The plaintiff, Benetta Buell-Wilson, was injured in an accident in January 2002 on the interstate near San Diego. She testified that a metal part flew off an RV in front of her, bounced on the road, and headed toward her windshield. When she swerved to avoid it, she lost control of her 1997 Explorer. The vehicle rolled 4 times and left Buell-Wilson hanging from the roof of her car, suspended by her seat belt. Rescuers initially had difficulty extracting Buell-Wilson from the vehicle. The accident left the 49-year-old paralyzed from the waist down.

In the lawsuit, Buell-Wilson contended that design defects on Explorers manufactured through 2001 made the vehicle unstable. She alleged that Ford had not followed recommendations from its engineers to widen the vehicle's wheel track or to lower its center of gravity, to make it less likely to roll over. Buell-Wilson also claimed that Ford had not sufficiently reinforced the vehicle's roof, leaving passengers more vulnerable in a rollover. She claimed that cost concerns had driven the automaker's decisions to refuse to make the design changes. Moreover, she alleged that weak support pillars were likely to collapse in rollover situations, which led to her instant paralysis when the roof buckled and broke her back. She testified at trial that the roof "crumpled like paper."

Her attorneys introduced internal Ford documents and testimony from former employees. This evidence demonstrated that Ford had repeatedly ignored engineering recommendations to change the design. Buell-Wilson's attorneys contended that Ford had known for more than 20 years about the rollover risks with SUVs.

At the trial, Ford asked to present evidence comparing the Explorer to other SUVs. The trial judge did not allow it.

The case went to trial in mid March 2004 and concluded with the jury decision in early June. The jury awarded more than $122.6 million in compensatory damages and $246 million in punitive damages . The verdict broke a string of victories in Ford's favor on Explorer rollover lawsuits.

At one point, Buell-Wilson's attorneys told Ford that they would be willing to settle the case for $5 million. Ford rejected the settlement offer. While the jury was deliberating, Ford reportedly offered to settle the lawsuit for the same amount but withdrew the offer before Buell-Wilson could respond.

The jury deliberated for four days before reaching its decision with regard to compensatory damages. It found that Ford had acted with malice , oppression , or fraud . That determination allowed the jury to consider punitive damages. Deliberation on the punitive damages issue lasted about one day.

The jury decision was 9 to 3. The jury was not required to reach a unanimous verdict.

After the verdict, Buell-Wilson offered to reduce the damage award by $100 million if Ford would agree to fix the design problems by recalling Explorers through 2001. Ford declined. The company continued to contend that the design was safe. Ford redesigned the Explorer in 2002.

In August 2004, the trial judge in the case upheld the jury's verdict but reduced the damages award. Judge Kevin A. Enright ruled that Ford had acted with "malice" and "conscious disregard" for drivers' safety. He ruled that punitive damages were appropriate because the company had known that the defects were potentially fatal, yet it had disregarded that information. However, he found that both the compensatory and punitive damages were excessive. He also determined that the jury had not acted with "prejudice or passion" in reaching its decision. He reduced the compensatory damages to $70 million for Buell-Wilson. He also reduced the compensatory damages from $13 million to $5 million for Buell-Wilson's husband, Barry Wilson. He further reduced the punitive damages to $75 million.

Judge Enright gave the Buell-Wilson a choice when he ordered the reduction of damages. She could accept the reduction, or he would grant Ford's motion for a new trial on the grounds of excessive damages. Ford filed a notice of appeal on September 15, 2004.

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