N E G L I G E N C E

TORT LAW

CIVIL ACTIONS

• A crime is an offense against society—a public wrong.

• A civil action is an offense against an individual

• Examples of civil actions:

Assault Battery False imprisonment Defamation Invasion of privacy

Trespass to land Conversion Interference with

contractual relations Fraud

HOW ARE CIVIL AND CRIMINAL ACTIONS DIFFERENT?

• Criminal Actions• Brought by the

government• Government is known as

the prosecution• Prosecution has the burden

of proof – beyond a reasonable doubt

• Defendant loses if found guilty

• Usual penalty is a prison sentence

• Civil Actions• Brought by private

citizens• Person bringing action is

known as the plaintiff• Plaintiff has the burden

of proof – preponderance of the evidence

• Defendant loses if found liable

• Usual penalty is money damages

TORTS

• Tort law deals with situations where a person's behavior has unfairly caused someone else to suffer loss or harm

• A tort is not necessarily an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss

• a wrongful act that results in injury to another's person, property, or reputation and for which the injured party is entitled to compensation

WHAT CAN A TORT VICTIM COLLECT?

• An injunction (court order) may be issued to prevent a tort - preventative

• The usual remedy for a tort is damages

• Lawyers handle civil lawsuits for a percentage of the recovery (25% if settled before trial, 33% if trial, 40% if appeal)

NEGLIGENCE

Negligence is the most common tort

Negligence can be defined as a failure to use reasonable care, resulting in damage or injury to another.

• Intent is not required, only carelessness

HOW TO PROVE NEGLIGENCE

• The plaintiff needs to prove four elements by a preponderance of the evidence

• Duty

• Breach of Duty

• Causation (two parts)

• Damages

DUTY

• A legal obligation to do or not do something

• Example: If you drive a car, you have a duty to obey the rules of the road

THE DUTY OF CARE

• The defendant had a legal duty or legal obligation to exercise due care to the plaintiff.

Due care is the amount of care that a reasonable person would exercise under similar circumstances.

THE REASONABLE PERSON

A reasonable person would consider (1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness of the harm.

Example: Would a reasonable person drive down the street with a paper grocery bag over her head?

CIRCUMSTANCES MATTER

• Circumstances are taken into consideration when evaluating a defendant’s actions

• Acceptable characteristics that contribute to the reasonable person:• Physical disabilities• If defendant is a child, the child’s age (unless doing an

“adult activity” such as driving a car)• Defendant acted during an emergency

• Unacceptable characteristics that do not contribute to the reasonable person• Mental characteristics (e.g. if defendant is of below average

intelligence, he can’t defend his actions based on this)• Intoxication

BREACH OF DUTY

• Violation of the duty

• The defendant’s conduct violated that duty because: • His or her conduct fell short of the standard of care. • Or, in other words, he or she did not act like a reasonable

person would have.

PROBLEM #1: DUTY AND BREACH

Itchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot. He stops at the intersection, looks both ways and then crosses the street

Questions:• Did Itchy act like a reasonable person?• Did Itchy’s actions breach a duty?

PROBLEM #2: DUTY AND BREACH

Scratchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot at night. He is wearing black pants, a black sweatshirt, black shoes, black gloves and a black ski mask. Scratchy puts his iPod headphones on and begins blasting music at full volume. Without looking, Scratchy crosses the street

Questions:• Did Scratchy act like a reasonable person?• Did Scratchy’s actions breach a duty?

CAUSATION

• Cause In Fact: The breach actually caused an injury. • Can you trace the injury back to the defendant’s

actions?

• Proximate Cause: The connection between the breach and the injury was foreseeable and not too remote. • Could the defendant have foreseen or guessed

that his or her actions would cause an injury?

PROBLEM #3: CAUSATION

• Captain McAllister’s boat spills oil into Springfield Harbor. Some of the oil sticks to docks owned by Fat Tony. One of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire dock

Questions:• Was Captain McAllister’s spilled oil a cause in fact of the dock

fire?• Was it the proximate cause of the dock fire?

DAMAGES

The plaintiff suffered actual damages (medical costs, lost wages, pain and suffering, etc.).

Two types of damages:• Compensatory - intended to compensate the plaintiff for

actual losses (lost wages, medical bills, pain & suffering, etc.)

• Punitive - intended to punish the defendant

DEFENSES TO NEGLIGENCE SUITS

• Contributory Negligence• If the plaintiff’s own negligence contributed to the harm

suffered, the plaintiff cannot collect anything from the defendant

• Comparative Negligence• Plaintiff’s recovery from the defendant is reduced by the

percentage that the plaintiff’s own negligence contributed to the injury• Called Proportionate Responsibility in Texas• In Texas, if the plaintiff is found to be over 50% responsible for his

own injuries, then he is barred from recovering any damages.

PROBLEM #4: THE BIG PICTURE

• The Simpson’s “One Fish, Two Fish, Blowfish, Blue Fish”

• Homer eats Fugu

Questions:• Was there negligence involved in Homer’s food poisoning?• What precautions were taken, if any, to prevent it?• Who was liable for the event?• Head Chef? Assistant Chef? Homer?

• Did Homer contribute in any way?• What damages occurred?

YOLANDA AND HER AGGRESSIVE PUPPY

• Yolanda’s dog Lucy is very aggressive and has bitten people in the past. One day she takes Lucy to the dog park and let’s her run free. Lucy runs across the street and bites Aaron’s leg while he’s shooting hoops. Aaron is rushed to the hospital where he learns that he will need to stay overnight and have surgery. His medical bills reach $15,000 and he had to miss a week of work while his leg healed. The doctor said he’ll never have full use of his leg.

ANALYZING THE CASE

Questions• Did Yolanda have a legal obligation?• Did she breach that duty?• Did her breach actually cause Aaron’s injury?• Could she have foreseen that Lucy would bite

someone like Aaron?• Are there damages in this case?

LIEBECK V. MCDONALDS

• In 1994, a 79-year-old woman bought a cup of coffee from the drive thru window at McDonalds. She put the cup between her knees and tried to open the lid to add cream and sugar. The coffee spilled and caused second and third degree burns to over 16% of her body. She spent 8 days in the hospital and had to undergo very painful skin graft operations.

ANALYZING THE CASE

Questions• Did McDonald’s have a legal obligation?• Did they breach that duty?• Did their breach actually cause Ms. Liebeck’s

injury?• Could they have foreseen that someone would

spill hot coffee over themselves?• Are there damages in this case?

THE RADIO STATION DISASTER

Read the hypothetical provided and answer the following:

Group 1 – you are defending the radio station. Argue why the radio stations should not be held liable using the elements of negligence as your guide.

Group 2 – You are representing the driver’s family. Apply the facts of this case to the 4 elements of negligence. Remember, you must prove all 4 to prove liability.

Group 3 – You are the judges. Based on the arguments made to you and what you learned about the elements, decide whether the radio station was negligent.