Sections within this essay:
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.
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.
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.
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.
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.
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.
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 relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for
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.
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.
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.
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.
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.
The general rule is that a person has no duty to rescue another person who is in peril. Even in an ex-
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.
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.
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.
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.
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.
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
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.
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.
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.
1050 31st Street, NW
Washington, DC 20007 USA
Phone: (800) 424-2725
URL: http://www.atla.org/
23945 Calabasas Rd. Suite 106
Calabasas, CA 91302 USA
URL: http://www.napil.com/
321 North Clark Street
Chicago, IL 60610 USA
Phone: (312) 988-5000
URL: http://www.abanet.org
