unit 4 seminar negligence. any questions about unit 3? is there anything you would like to discuss...

Unit 4 Seminar

Negligence

Any questions about Unit 3?

Is there anything you would like to discuss regarding Unit 3?

Great job on the Discussion Board!

Unit 4 requirements

• Read Chapter 2 of Torts and Personal Injury Law

• Participate in the Discussion (2 Boards)• Attend the Seminar • Take a short Quiz

Negligence

• Negligence– The failure to exercise reasonable care to avoid

injuring others or their property. – 4 elements of negligence: • Duty• Breach• Causation• Damages.

Negligence

• Elements required to maintain a negligence action

• How to prove negligence• Compare and contrast negligence and

intentional torts

Elements of Negligence

• Every single element must be present or else there is NO negligence– 1. Duty of care– 2. Breach of the duty by the tortfeasor

(unreasonable conduct)– 3. Causation of injury to the victim– 4. Damages to the victim (actual harm).


• 1. Duty of care– Generally, a duty is the obligation either to do or

not to do something • In negligence, the duty of due reasonable care is the

responsibility to act reasonably so as to avoid injuring others

– Do not owe duty to everyone, just foreseeable plaintiffs• Was the harm to that person reasonably anticipated


• 2. Breach of the duty by the tortfeasor (unreasonable conduct)– Reasonable conduct – what would the ordinary

person do in that same situation• Judge or jury determines reasonableness


• 1. Breach of the duty by the tortfeasor (unreasonable conduct)– Professional Community Standard of care• Reasonableness determined by the customs and

practices of defendant’s professional community– Doctors, attorneys, plumbers, etc

– Disabled standards• Reasonable blind person, reasonable deaf person

– Special relationship• Employer/employee; teacher/student; host/guest, etc

Elements of Negligence • 3. Causation of injury to the victim– The conduct must be the cause of the injury– Causation Theories

• “cause-in-fact” – but for the tortfeasor’s, the victim would not have been harmed.– The tortfeasor’s behavior is usually the immediate, direct, and

dominant cause of the victim’s injuries.• Substantial Factor Analysis

– Tortfeasor liable when his actions were a substantial factor in causing the damage

• Joint and Several Liability– Multiple tortfeasors are each held individually liable for the

combined negligent behavior of all the tortfeasors


• 3. Causation of injury to the victim– “proximate cause”• When the tortfeasor’s actions cause a foreseeable

injury to the victim• Was the victim’s injury the reasonably foreseeable

result of what the tortfeasor did?

Elements of Negligence • Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 248 N.Y.

339, 162 N.E. 99 (N.Y. 1928).• Facts

– Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train.

– The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train.

– The man dropped the package which exploded when it hit the tracks.

– The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf.

– Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the court’s judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed.


• Issues– How is the duty of due care that is owed

determined?– To whom does a party owe the duty of due care?

Elements of Negligence • Holding and Rule (Cardozo – “Zone of Danger” rule)

– A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances.

– A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger.

– The court held that the conduct of Long Island Railroad’s guard was wrongful in relation to the man carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the package contained fireworks which when dropped could harm a person as far from the zone of danger as Palsgraf.

– To find negligence there must first be a finding that a duty was owed and breached, and that the injury could have been avoided if the defendant had been following that duty. The orbit of the danger or risk associated with a danger or risk is that which a reasonable person would foresee.

– Even if the guard had intentionally taken the package and thrown it he would not have threatened Palsgraf’s safety from the appearances of the circumstances to a reasonable person. Long Island Railroad’s liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional


• 3. Causation of injury to the victim– Taking the victim as you find him• Some people have different sensitivities and reactions• Some courts that hold that you take the victim as you

find him and thus almost all physical reactions are reasonably foreseeable


• Colleen operates a laundromat. Geoffrey often washes and dries his clothes there. One day, while Geoffrey was loading his laundry into the washer, the machine unexpectedly began agitating and injured his arms and hands.

• Did Colleen proximately cause Geoffrey’s injuries?

Elements of Negligence • Foreseeability of injury is the starting point. Was it

reasonably foreseeable that the washer Geoffrey used would short-circuit and suddenly begin operating while Geoffrey was loading his clothes?

• It is not uncommon for electrical, mechanical devices to jump to life by themselves unexpectedly. This often occurs when electrical wiring short-circuits after the wires’ insulation has frayed. Because people must insert their hands and arms inside the washing machine drum to load clothing, it is reasonably foreseeable that a shorted machine might start itself while a patron’s arms are inside.

• Thus, Geoffrey’s injuries were reasonably foreseeable and Colleen proximately caused the harm suffered.

Elements of Negligence • Suppose, however, that Geoffrey’s arms and hands were

not trapped inside the machine when it suddenly began agitating.

• Suppose, instead, that the surprise simply frightened Geoffrey, who was unusually susceptible to sudden, loud noises and suffered a heart attack as a consequence of the shock.

• Could Colleen have reasonably anticipated this tragedy? • Most courts would reverse the reasonable person standard

(applying it to the plaintiff) and say that a reasonable person would not be so easily alarmed (to the point of heart failure) by an upstart washing machine.

• However, a few courts would employ taking-the-victim analysis and say that even this remote and unexpected injury was foreseeable.


• 4. Damages to the victim (actual harm)– Damages are the injury that the plaintiff suffered

as a result of the defendant’s tortious conduct• In a negligence action, you must demonstrate

calculable harm


• 4. Damages to the victim (actual harm)– Compensatory damages – generally compensates

for out-of-pocket loss• General damages

– Compensatory damages that naturally flow from the conduct (like pain and suffering)

• Special damages (consequential damages)– Compensatory damages specific to the plaintiff

» Medical bills, etc» MUST be specifically plead (must address them

specifically in the Complaint)


• 4. Damages to the victim (actual harm)– Compensatory damages – generally compensates

for out-of-pocket loss• Economic Damages – actual out-of-pocket loss• Non-economic damages – loss that cannot be easily

quantified (mental anguish, etc)


• 4. Damages to the victim (actual harm)– Nominal Damages

• Small, token, symbolic damages awarded when no real damage was done but a right was nonetheless violated– Usually in intentional tort actions

• Not allowed in negligence actions

– Punitive Damages (exemplary damages)• Extra damages awarded because conduct was so egregious• Meant to punish• Very rarely allowed in negligence actions

– Only Gross Negligence– More common in intentional torts

Proving Negligence

• Burden of Proof– The plaintiff must prove defendant was negligent.• Plaintiff to prove by a preponderance of the evidence

that all negligence elements existed (duty, breach, causation, and injury). • The evidence must establish that the defendant’s

actions were negligent and caused the plaintiff ’s injuries

– Preponderance of the evidence• The quality of evidence weighs in favor of the plaintiff

Proving Negligence

• Once plaintiff makes his prima facie case then defendant can rebut with evidence of his own– Prima facie case – plaintiff has proved the

elements by a preponderance of the evidence

Proving Negligence

• Res Ipsa Loquitur– “The thing speaks for itself”– Used when plaintiff is unable to present proof• Unconscious, not there, etc

– Presumes negligence just because something happened• If patient is unconscious during surgery and did not see

the surgeon leave a sponge in him, the fact that it is even in there is proof that there was negligence

– Burden shift to defendant to disprove negligence

Proving Negligence

• Res Ipsa Loquitur– Elements• 1. The defendant (or his or her employee[s]) must have

been in exclusive control of the object or action that produced the plaintiff ’s injury.• 2. The plaintiff ’s injury must be of a type that ordinarily

would not have happened unless negligence were involved.• 3. The defendant must be in a better position to prove

his or her lack of negligence than the plaintiff is to prove the defendant’s negligence.

Violation of a Statute

• In most states, violation of a statute is negligence per se– Just proving the violation would prove negligence• Care and reasonableness unnecessary

Different from Intentional Torts

• Intentional torts require intent– Negligence does not require intent, just a breach of

duty of care• Intentional torts can result in nominal damages– Negligence cannot – must prove damages

• Intentional torts are more likely to result in punitive damages– Only with Gross negligence

• Intentional torts are more likely to “take victims as you find them”– Rarer with pure negligence

unit 4 seminar negligence. any questions about unit 3? is there anything you would like to discuss...

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