5.2 Negligence

Negligence is a cornerstone of tort law, focusing on situations where someone's carelessness causes harm to others. This topic explores the elements of negligence, including duty of care, breach, causation, and damages, as well as key concepts like the reasonable person standard.

The chapter delves into special rules and defenses in negligence cases, such as res ipsa loquitur and comparative negligence. It also covers related topics like premises liability, emotional distress claims, and vicarious liability, providing a comprehensive overview of negligence law.

Elements of negligence

• Negligence is a tort that occurs when a person fails to exercise reasonable care, resulting in harm to another person or their property
• To establish negligence, the plaintiff must prove four key elements: duty of care, breach of duty, causation, and damages
• If any of these elements are missing, the plaintiff will not be able to recover damages for their injuries or losses

Duty of care

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• A duty of care is a legal obligation to act with a reasonable level of care to avoid causing foreseeable harm to others
• The existence of a duty depends on the relationship between the parties and the specific circumstances (doctor-patient, business owner-customer)
• Factors considered in determining duty include foreseeability of harm, likelihood of injury, and social utility of the defendant's conduct

Breach of duty

• A breach of duty occurs when a person fails to act with the level of care that a reasonable person would have exercised under similar circumstances
• The reasonable person standard is an objective test that considers what a hypothetical prudent person would have done, rather than the defendant's subjective intent or state of mind
• Examples of breach include a driver running a red light or a store owner failing to clean up a spill in a timely manner

Causation

• Causation requires proof that the defendant's breach of duty was both the actual cause and proximate cause of the plaintiff's injuries
• Actual cause, also known as cause-in-fact, means that the harm would not have occurred but for the defendant's negligent conduct
• Proximate cause limits liability to foreseeable consequences of the defendant's actions, rather than every possible result

Actual cause

• Actual cause is often determined using the "but-for" test: would the injury have occurred but for the defendant's negligence?
• In some cases, multiple factors may contribute to an injury, and the court will consider whether the defendant's conduct was a substantial factor in causing the harm
• The plaintiff must prove actual cause by a preponderance of the evidence, meaning it is more likely than not that the defendant's actions caused the injury

Damages

• Damages are the losses or injuries suffered by the plaintiff as a result of the defendant's negligence
• Types of damages include economic losses (medical bills, lost wages), non-economic losses (pain and suffering, emotional distress), and property damage
• The plaintiff must prove the existence and amount of damages with reasonable certainty, often through expert testimony or documentation

Standard of care

• The standard of care is the level of care that a reasonable person would exercise in similar circumstances
• It serves as a benchmark for determining whether a defendant's conduct was negligent
• The standard of care varies depending on the situation and the defendant's role or expertise

Reasonable person standard

• The reasonable person standard is an objective test that considers what a hypothetical prudent person would have done in the same situation
• Factors considered include the foreseeable risk of harm, the likelihood of injury, and the burden of taking precautions
• The reasonable person is not expected to be perfect or possess extraordinary skills, but rather to exercise ordinary care

Professional standard of care

• Professionals, such as doctors, lawyers, and accountants, are held to a higher standard of care based on their specialized knowledge and training
• The professional standard compares the defendant's conduct to that of a reasonably competent professional in the same field
• Plaintiffs often need expert testimony to establish the professional standard and prove a breach

Children and mentally disabled

• Children are generally held to a modified standard of care that considers their age, intelligence, and experience
• The question is whether the child acted with the level of care expected of a reasonable child of similar age and characteristics
• Mentally disabled individuals may be held to a subjective standard that accounts for their specific limitations, but this varies by jurisdiction

Res ipsa loquitur

• Res ipsa loquitur is a legal doctrine that allows a plaintiff to establish negligence through circumstantial evidence
• It applies when the accident is of a type that normally would not occur without negligence, and the defendant had exclusive control over the instrumentality causing the injury
• The doctrine shifts the burden of proof to the defendant to show that they were not negligent

Elements of res ipsa loquitur

• The accident must be of a type that ordinarily does not occur without negligence (a surgical instrument left inside a patient)
• The instrumentality causing the injury must have been within the defendant's exclusive control
• The plaintiff must not have contributed to the accident through their own voluntary actions or negligence

Rebutting the presumption

• When res ipsa loquitur applies, it creates a rebuttable presumption of negligence
• The defendant can overcome this presumption by offering evidence that they exercised reasonable care or that the accident was caused by factors beyond their control
• If the defendant presents sufficient evidence, the burden of proof shifts back to the plaintiff to prove negligence

Negligence per se

• Negligence per se is a doctrine that allows a plaintiff to establish breach of duty by showing that the defendant violated a statute or regulation designed to prevent the type of harm that occurred
• The violation is treated as conclusive evidence of negligence, without the need to prove the reasonable person standard
• The plaintiff must still prove causation and damages

Violation of statute

• The statute or regulation must be designed to protect the class of persons to which the plaintiff belongs and to prevent the type of harm that occurred
• Examples include traffic laws, building codes, and safety regulations
• The violation must be the actual and proximate cause of the plaintiff's injuries

Causation still required

• Even if negligence per se applies, the plaintiff must still prove that the defendant's violation of the statute caused their injuries
• The defendant may argue that the violation was not a substantial factor in causing the harm or that the injury was not a foreseeable consequence of the violation
• Causation is a separate element that must be established in addition to breach of duty

Defenses to negligence

• Defenses to negligence are legal arguments that a defendant can raise to avoid or reduce liability
• Common defenses include contributory negligence, comparative negligence, and assumption of risk
• The availability and effect of these defenses vary by jurisdiction

Contributory negligence

• Contributory negligence is a defense that completely bars a plaintiff from recovering damages if they contributed to their own injury through their own negligence
• Under this doctrine, even if the plaintiff was only slightly at fault, they cannot recover any damages from the defendant
• Most states have abandoned contributory negligence in favor of comparative negligence

Comparative negligence

• Comparative negligence allows a plaintiff to recover damages even if they were partially at fault for their injuries
• Under pure comparative negligence, the plaintiff's damages are reduced by their percentage of fault (if 30% at fault, they recover 70% of damages)
• Some states use modified comparative negligence, which bars recovery if the plaintiff's fault exceeds a certain threshold (often 50%)

Assumption of risk

• Assumption of risk is a defense that applies when the plaintiff voluntarily and knowingly encounters a known risk
• The defendant must show that the plaintiff understood and appreciated the specific risk involved and voluntarily chose to encounter it
• Implied assumption of risk, where the plaintiff's conduct suggests an acceptance of risk, has been subsumed by comparative negligence in most states

Special duties and limits

• In some situations, the law imposes special duties or limits on the standard of care owed to others
• These include premises liability, landlord-tenant relationships, and the duty to rescue
• The scope of these duties and limits varies by jurisdiction and the specific circumstances

Premises liability

• Premises liability refers to a property owner's duty to maintain their property in a reasonably safe condition for visitors
• The duty owed depends on the visitor's status: invitee (highest duty), licensee (intermediate duty), or trespasser (lowest duty)
• Property owners must warn of or repair known dangers and inspect for latent hazards

Landlord-tenant relationships

• Landlords owe a duty to their tenants to maintain the rental property in a habitable condition and to repair known defects
• This implied warranty of habitability requires landlords to provide essential services (heat, water, electricity) and comply with housing codes
• Landlords may also be liable for injuries caused by defects in common areas under their control

Duty to rescue

• Generally, there is no affirmative duty to rescue or assist someone in peril, even if doing so would be easy and pose no risk to the rescuer
• Exceptions include special relationships (parent-child, employer-employee), creating the peril, and undertaking to rescue and then abandoning the effort
• Some states have enacted "Good Samaritan" laws that provide liability protection for those who voluntarily assist others in emergency situations

Nonfeasance vs misfeasance

• Nonfeasance is a failure to act when there is no duty to do so, while misfeasance is an affirmative act that causes harm
• The distinction is important because nonfeasance generally does not give rise to liability, while misfeasance does
• Exceptions to nonfeasance include special relationships, creating the peril, and undertaking to rescue

Negligent infliction of emotional distress

• Negligent infliction of emotional distress (NIED) is a tort that allows recovery for emotional harm caused by another's negligence
• Traditionally, courts were reluctant to recognize emotional distress claims without accompanying physical injury, but this has changed over time
• States have adopted various rules for determining when NIED claims are allowed

Zone of danger rule

• Under the zone of danger rule, a plaintiff can recover for NIED if they were in close proximity to a physically threatening event caused by the defendant's negligence
• The plaintiff must have been within the zone of physical danger and have feared for their own safety
• This rule limits recovery to those who were at risk of physical injury, even if they did not suffer any physical harm

Bystander rule

• The bystander rule allows recovery for NIED when the plaintiff witnesses a close family member suffer a serious injury or death caused by the defendant's negligence
• The plaintiff must be in close proximity to the accident, perceive it contemporaneously, and suffer severe emotional distress as a result
• States vary in the specific requirements for bystander claims, such as the definition of "close family member" and the necessary degree of proximity

Direct victim rule

• The direct victim rule allows NIED recovery when the defendant's negligence is directed at the plaintiff, even if there is no risk of physical injury
• This rule is often applied in cases involving mishandling of corpses, erroneous death notifications, or breaches of confidentiality
• The plaintiff must show that the defendant owed them a duty of care and that the emotional distress was a foreseeable consequence of the negligence

Vicarious liability

• Vicarious liability is a legal doctrine that holds one party responsible for the negligence of another, based on their relationship
• The most common form is respondeat superior, which holds employers liable for the negligence of their employees within the scope of employment
• Vicarious liability is based on the idea that the responsible party has the right, ability, and duty to control the actions of the negligent party

Respondeat superior

• Respondeat superior holds employers liable for the negligence of their employees, if the negligence occurs within the scope of employment
• The employee's conduct must be related to their job duties and be motivated, at least in part, by a desire to serve the employer's interests
• Employers can be liable even if they did not authorize or know about the employee's specific negligent act

Independent contractors

• Generally, employers are not vicariously liable for the negligence of independent contractors, who are hired to perform specific tasks but retain control over the manner and means of their work
• Exceptions include inherently dangerous activities, non-delegable duties, and negligent hiring or supervision of the contractor
• The distinction between employees and independent contractors depends on factors such as the degree of control, method of payment, and the nature of the work

Joint and several liability

• Joint and several liability applies when multiple defendants are responsible for a plaintiff's indivisible injury
• Under this doctrine, each defendant is individually liable for the full amount of damages, regardless of their degree of fault
• The plaintiff can recover the full amount from any defendant, and the defendants must then seek contribution from each other
• Some states have modified or abolished joint and several liability in favor of proportionate liability based on each defendant's percentage of fault