ELEMENTS OF CAUSE OF ACTION OF NEGLIGENCE:
"Negligence" is the word used to describe the conduct of the defendant. But a cause
of action for negligence requires more than negligent conduct. The traditional formula
for the elements necessary to prove negligence include the following:
1. A duty to use reasonable care. This is an obligation recognized by the law,
requiring the actor to conform to a certain standard of conduct, for the protection of
others against unreasonable risks.
2. A failure to conform to the required standard. This is commonly called breach of
the duty. These two elements go to make up what the courts usually have called
negligence; but the term frequently is applied to the second alone. Thus it may be said
that the defendant was negligent, but is not liable because he was under no duty to the
plaintiff to use reasonable care.
3. A reasonably close causal connection between the conduct and the resulting injury.
This is commonly called causation. Causation involves a combination of two
elements-causation in fact and legal or "proximate" causation.
4. Actual loss or damage resulting to the interests of another.
The action for negligence developed chiefly out of the old form of action on the case;
and it retained the rule of that action that pleading and proof of damage was an
essential part of the plaintiffs case. It is clear that nominal damages to vindicate a
technical right cannot be recovered in a negligence action if no actual damage has
occurred.
LUBITZ v. WELLS
Superior Court of Connecticut, 1955. 19 Conn.Sup. 322, 113 A.2d 147.
TROLAND, Judge. The complaint alleges that James Wel1s was owner of a golf club
and that he left it for some time lying on the ground in the backyard of his home. That
thereafter his son, the defendant James Wel1s, Jr., aged eleven years, while playing in
the yard with plaintiff, Judith Lubitz, aged nine years, picked up the golf club
proceeded to swing at a stone lying on the ground. In swinging the club, James
Wel1s, Jr., caused the club to strike the plaintiff about the jaw and chin.
Negligence al1eged against the young Wel1s boy is that he failed to warn his little
playmate of his intention to swing the club and that he did swing the club when he
knew she was in a position of danger.
In an attempt to hold the boy's father, James Wel1s, liable for son's action, it is
al1eged that James Wel1s Was negligent because although he knew the golf club was
on the ground in his backyard, that his children would play with it, and that although
he knew "should have known" that the negligent use of the golf club by children
would cause injury to a child, he neglected to remove the golf club fn the backyard or
to caution James Wel1s, Jr., against the Use of the same
1
The demurrer chal1enges the sufficiency of the al1egations of the complaint to state a
cause of action or to support a judgment against the father, James Wel1s.
It would hardly be good sense to hold that this golf club is obviously and intrinsically
dangerous that it is negligence to leave lying on the ground in the yard. The father
cannot be held liable on the allegations of this complaint.
The demurrer is sustained.
RESTATEMENT (SECOND) OF TORTS (1965)
§ 291. Unreasonableness; How Determined; Magnitude of Risk and Utility of
Conduct
Where an act is one which a reasonable man would recognize as involving a risk of
harm to another, the risk is unreasonable and the act is negligent if the risk is of such
magnitude as to outweigh what the law regards as the utility of the act or of the
particular manner in which it is done.
§ 292. Factors Considered in Determining Utility of Actor's Conduct
In determining what the law regards as the utility of the actor's conduct for the
purpose of determining whether the actor is negligent, the following factors are
important:
(a) the social value which the law attaches to the interest which is to be advanced or
protected by the conduct;
(b) the extent of the chance that this interest will be advanced or protected by the
particular course of conduct;
(c) the extent of the chance that such interest can be adequately advanced or protected
by another and less dangerous course of conduct.
§ 293. Factors Considered in Determining Magnitude of Risk In determining the
magnitude of the risk for the purpose of determining whether the actor is negligent,
the following factors are important:
(a) the social value which the law attaches to the interests which are imperiled;
(b) the extent of the chance that the actor's conduct will cause an invasion of any
interest of the other or of one of a class of which the other is a member;
(c) the extent of the harm likely to be caused to the interests imperiled;
(d) the number of persons whose interests are likely to be invaded if the risk takes
effect in harm.
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ROBERTS v. STATE OF LOUISIANA
Court of Appeal of Louisiana, 1981. 396 So.2d 566.
LABORDE, JUDGE. In this tort suit, William C. Roberts sued to recover damages for
injuries he sustained in an accident in the lobby of the U.S, Post Office Building in
Alexandria, Louisiana, Roberts fell after being bumped into by Mike Burson, the
blind operator of the concession stand located in the building.
Plaintiff sued the State of Louisiana, through the Louisiana Health and Human
Resources Administration, advancing two theories of liability: respondeat superior
and negligent failure by the State to properly supervise and oversee the safe operation
of the concession stand. 'The stand's blind operator, Mike Burson, is not a party to this
suit although he is charged with negligence,
[The trial court ordered plaintiff's suit dismissed.]
We affirm the trial court's decision for the reasons which follow, On September 1,
1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand
to go to the men's bathroom located in the building. As he was walking down the hall,
he bumped
into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood
5'6" and weighed approximately 100 pounds. Burson, on the other hand, was 25 to 26
years old, stood approximately 6' and weighed 165 pounds. * * *
Even though Burson was not joined as a defendant, his negligence or lack thereof is
crucial to a determination of the State's liability. Because of its importance, we begin
with it.
Plaintiff contends that operator Mike Burson traversed the area from his concession
stand to the men's bathroom in a negligent manner. To be more specific, he focuses
on the operator's failure to use his cane even though he had it with him in his
concession stand.
In determining an actor's negligence, various courts have imposed differing standards
of care to which handicapped persons are expected to perform. Professor William L.
Prosser expresses one generally recognized modern standard of care as follows:
"As to his physical characteristics, the reasonable man may be said to be identical
with the actor. The man who is blind ... is entitled to live in the world and to have
allowance made by others for his disability, and he cannot be required to do the
impossible by conforming to physical standards which he cannot meet . . .. At the
same time, the conduct of the handicapped individual must be reasonable in the light
of his knowledge of his infirmity, which is treated merely as one of the circumstances
under which he acts. .. It is sometimes said that a blind man must use a greater degree
of care than one who can see; but it is now generally agreed that as a fixed rule this is
inaccurate, and that the correct statement is merely that he must take the precautions,
be they more or less, which the ordinary reasonable man would take if he were blind."
A careful review of the record in this instance reveals that Burson was acting as a
reasonably prudent blind person would under these particular circumstances. Mike
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Burson is totally blind. Since 1974, he has operated the concession stand located in
the lobby of the post office building. It is one of twenty-three vending stands operated
by blind persons under a program funded by the federal government and implemented
by the State through the Blind Services Division of the Department of Health and
Human Resources. Burson hired no employees, choosing instead to operate his stand
on his own.
On the date of the incident in question, Mike Burson testified that he left his
concession stand and was on his way to the men's bathroom when he bumped into
plaintiff. He, without hesitancy, admitted that at the time he was not using his cane,
explaining that he relies on his facial sense which he feels is an adequate technique
for short trips inside the familiar building. Burson testified that he does use a cane to
get to and from work.
Plaintiff makes much of Burson's failure to use a cane when traversing the halls of the
post office building. Yet, our review of the testimony received at trial indicates that it
is not uncommon for blind people to rely on other techniques when moving around in
a familiar setting. For example George Marzloff, the director of the Division of Blind
Services, testified that he can recommend to the blind operators that they should use a
cane but he knows that when they are in a setting in which they are comfortable, he
would say that nine out of ten will not use a cane and in his personal opinion, if the
operator is in a relatively busy area, the cane can be more of a hazard than an asset.
The only testimony in the record that suggests that Burson traversed the halls in a
negligent manner was that elicited from plaintiffs expert witness, William Henry
Jacobson. Jacobson is an instructor in peripathology, which he explained as the
science of movement within the surroundings by visually impaired individuals.
Jacobson, admitting that he conducted no study or examination of Mike Burson's
mobility skills and that he was unfamiliar with the State's vending program,
nonetheless testified that he would require a blind person to use a cane in traversing
the areas outside the concession stand.
Upon our review of the record, we feel that plaintiff has failed to show that Burson
was negligent. Burson testified that he was very familiar with his surroundings,
having worked there for three and a half years. He had special mobility training and
his reports introduced into evidence indicate good mobility skills. He explained his
decision to rely on his facial sense instead of his cane for these short trips in a manner
which convinces us that it was a reasoned decision. Not only was Burson's
explanation adequate, there was additional testimony from other persons indicating
that such a decision is not an unreasonable one. Also important is the total lack of any
evidence in the' record showing that at the time of the incident, Burson engaged in
any acts which may be characterized as negligence on his part. For example, there is
nothing showing that Burson was walking too fast, not paying attention, et cetera.
Under all of these circumstances, we conclude that Mike Burson was not negligent.
Our determination that Mike Burson was not negligent disposes of our need to discuss
liability on the part of the State.
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For the above and foregoing reasons, the judgment of the trial court dismissing
plaintiffs claims against defendant is affirmed and all costs of this appeal are assessed
against the plaintiff-appellant.
Affirmed.
BREUNIG v. AMERICAN' FAMILY INS. CO.
Supreme Court of Wisconsin, 1970. 45 Wis.2d 536, 173 N.W.2d 619.
[Action for personal injuries received by plaintiff when his truck was struck by an
automobile driven on the wrong side of the highway by Mrs. Erma Veith. The action
was brought against Mrs. Veith's automobile insurance company under Wisconsin
procedure which permits direct action against a liability insurer. The jury returned a
verdict for
plaintiff, and defendant appealed.]
HALLOWS, CHIEF JUSTICE. There is no question that Erma Veith was subject at
the time of the accident to an insane delusion which directly affected her ability to
operate her car in an ordinarily prudent manner and caused the accident.
Tbe evidence established that Mrs. Veith, while returning home after taking her
husband to work, saw a white light on the back of the car ahead of her. She followed
this light for three or four blocks. Mrs. Veith could not remember anything else
except landing in a field, lying on the side of the road, and people talking. She
recalled awaking in the hospital.
The psychiatrist testified Mrs. Veith told him she was driving on a road when she
believed that God was taking ahold of the steering wheel and was directing her car.
She saw the truck coming and stepped on the gas in order to become air-borne
because she knew she could fly because Batman does it. To her surprise she was not
air-borne before striking the truck, but after the impact she was flying. The
psychiatrist testified Erma Veith was suffering from "schizophrenic reaction, paranoid
type, acute." He stated that from the time Mrs. Veith commenced following the car
with the white light and ending with the stopping of her vehicle in the cornfield, she
was not able to operate the vehicle with her conscious mind, and that she had no
knowledge or forewarning that such illness or disability would likely occur.
The case was tried on the theory that some forms of insanity are a defense to and
preclude liability for negligence. Not all types of insanity vitiate responsibility for a
negligent tort. The question of liability in every case must depend upon the kind and
nature of the insanity. The effect of the mental illness or mental hallucination must be
such as to affect the person's ability to understand and appreciate the duty which rests
upon him to drive his car with ordinary care, or if the insanity does not affect such
understanding and appreciation, it must affect his ability to control his car in an
ordinarily prudent manner. And in addition, there must be an absence of notice or
forewarning to the person that he may be suddenly subject to such a type of insanity
or mental illness.
The policy basis of holding a permanently insane person liable for his tort is: (1)
Where one of two innocent persons must suffer a loss it should be borne by the one
5
who occasioned it; (2) to induce those interested in the estate of the insane person (if
he has one) to restrain and control him; and (3) the fear an insanity defense would
lead to false claims of insanity to avoid liability.
The cases holding an insane person liable for his torts have generally dealt with preexisting insanity of a permanent nature and the question here presented was neitber
discussed nor decided. The plaintiff cites Sforza v. Green Bus Lines (1934) 150 Misc.
180, 268 N.Y.S. 446; Shapiro v. Tchernowitz (1956) 3 Misc.2d 617,155 N.Y.S.2d
1011; Johnson v. Lambotte (1961) 147 Colo. 203, 363 P.2d 165, for holding insanity
is not a defense in negligence cases. Sforza and Shapiro are New York trial court
decisions which do not discuss the question here presented and are unconvincing. In
Johnson, the defendant was under observation by order of the county court and was
being treated in a hospital for "chronic schizophrenic state of paranoid type." On the
day in question, she wanted to leave the hospital and escaped therefrom and found an
automobile standing on a street with its motor running a few blocks from the hospital.
She got into the car and drove off, having little or no control of the car. She soon
collided with the plaintiff. Later she was adjudged mentally incompetent and
committed to a state hospital. Johnson is not a case of sudden mental seizure with no
forewarning. The defendant knew she was being treated for mental disorder and hence
would not come under the nonliability rule herein stated.
We think the statement that insanity is no defense is too broad when it is applied to a
negligence case where the driver is suddenly overcome without forewarning by a
mental disability or disorder which incapacitates him from conforming his conduct to
the standards of a reasonable man under like circumstances. These are rare cases
indeed, but their rarity is no reason for overlooking their existence and the
justification which is the basis of the whole doctrine of liability for negligence, i.e.,
that it is unjust to hold a man responsible for his conduct which he is incapable of
avoiding and which incapability was unknown to him prior to the accident.
We need not reach the question of contributory negligence of an insane person or the
question of comparative negligence as those problems are not now presented. All we
hold is that a sudden mental incapacity equivalent in its effect to such physical causes
as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike
and not under the general rule of insanity.
An interesting case holding this view in Canada is Buckley & Toronto Transp.
Comm'n v. Smith Transport, Ltd. [1946] Ont.Rep. 798, 4 Dom.L.Rep. 721, which is
almost identical on the facts with the case at bar. There, the court found no negligence
when a truck driver was overcome by a sudden insane delusion that his truck was
being operated by remote control of his employer and as a result he was in fact
helpless to avert a collision.
[The court then considered whether Mrs. Veith had any warning or knowledge that
would reasonably lead her to believe that hallucinations would occur and be such as
to affect her driving an automobile. It concluded that, notwithstanding the testimony
of the psychiatrist that in his opinion she did not, there was sufficient evidence of her
past conduct to permit the jury to conclude that she believed she had a special
relationship to God and was the chosen one to survive at the end of the world, and
6
that she could believe that God would take over the direction of her life to the extent
of driving her car. The question was held therefore to be properly left to the jury.
Judgment affirmed.
PERKINS v. TEXAS AND NEW ORLEANS RY. CO.
Supreme Court of Louisiana, 1962. 243 La. 829, 147 So.2d 646.
SANDERS, JUSTICE. This is a tort action. Plaintiff, the 67-year-old widow of
Tanner Perkins, seeks damages for the death of her husband in collision of an
automobile, in which he was riding, with a train of the defendant railroad. The district
court awarded damages. The Court of Appeals affirmed. We granted certiorari to
review the judgment of the Court of Appeal.
The tragic accident which gave rise to this litigation occurred at the 'section of Eddy
Street and The Texas and New Orleans Railroad Company track in the town of
Vinton, Louisiana, at approximately 6:02, after daylight, on September 28, 1959. At
this crossing Eddy street runs north and south, and the railroad track, east and west.
Involved was a 113-car freight train pulled by four diesel engines traveling east and a
Dodge automobile driven by Joe Foreman in a southerly direction on Eddy Street.
Tanner Perkins, a guest passenger, riding in the front seat of the automobile with the
driver.
Located in the northwest quadrant of the intersection of the railroad track and Eddy
Street was a warehouse five hundred feet long. A “house track" paralleled the main
track on the north to serve the warehouse. This warehouse obstructed the view to the
west of an automobile driver approaching the railroad crossing from the north on
Eddy Street. It likewise obstructed the view to the north of trainmen approaching the
crossing from the west. Having previously served on route, the engineer and
brakeman were aware of this obstruction.
To warn the public of the approach of trains, the defendant railroad installed at the
crossing an automatic signal device consisting of a swinging red light and a bell. At
the time of the accident, this signal was operating. A standard Louisiana railroad stop
sign and an intersection stop sign were also located at the crossing.
Proceeding east, the train approached the intersection with its headlight burning, its
bell ringing, and its whistle blowing.
The engineer, brakeman, and fireman were stationed in the forward engine of the
train. The engineer was seated on the right or south side, where he was unable to
observe an automobile approaching from the left of the engine. The brakeman and
fireman, who were seated on the left or north side of the engine, were looking forward
as the train approached the intersection. These two crewmen saw the automobile
emerge from behind the warehouse. At that time the front wheels of the automobile
were on or across the north rail of the house track. The fireman estimated that the
train was approximately 60 feet from the crossing when the automobile emerged from
behind the warehouse. The brakeman, however, estimated that the train was 30 to 40
feet from the crossing at the time the automobile came into view. Both crewmen
immediately shouted a warning to the engineer, who applied the emergency brakes.
The train struck the right side of the automobile and carried it approximately 1250
7
feet. The two occupants were inside the automobile when it came to rest. Both were
killed.
The speed of the automobile in which Tanner Perkins was riding was variously
estimated from 3-4 miles per hour to 20-25 miles per hour.
The plaintiff and defendant railroad concede in their pleadings that Joe Foreman, the
driver of the automobile, was negligent in driving upon the track in front of the train
and that his negligence was a proximate cause of the death of Tanner Perkins.
It is conceded that the railroad's safety regulations imposed a speed limit of 25 miles
per hour on trains in the town of Vinton. The plaintiff has conceded in this Court that
this self-imposed speed limit was a safe speed at the crossing. The train was in fact
traveling at a speed of 37 miles per hour.
Applicable here is the rule that the violation by trainmen of the railroad's own speed
regulations adopted in the interest of safety is evidence of negligence. * * *
We find, as did the Court of Appeal, that the trainmen were negligent in operating the
train 12 miles per hour in excess of the speed limit.
* * * [T]he prime issue in this case is whether the excessive speed of the train was a
cause in fact of the fatal collision.
It is fundamental that negligence is not actionable unless it is a cause in fact of the
harm for which recovery is sought. It need not, of course, be the sole cause.
Negligence is a cause in fact of the harm to another if it was a substantial factor in
bringing about that harm. Under the circumstances of the instant case, the excessive
speed was undoubtedly a substantial factor in bringing about the collision if the
collision would not have occurred without it. On the other hand, if the collision would
have occurred irrespective of such negligence, then it was not a substantial factor.
[Cc]
In the instant case the train engineer testified that at a speed of 25 miles per hour he
would have been unable to stop the train in time to avoid the accident. Other facts of
record support his testimony in this regard. With efficient brakes, the mile-long train
required 1250 feet to stop at a speed of 37 miles per hour. It is clear, then, that even at
the concededly safe speed of 25 miles per hour, the momentum of the train would
have, under the circumstances, carried it well beyond the crossing. This finding, of
course, does not fully determine whether the collision would have been averted at the
slower speed. The automobile was also in motion during the crucial period. This
necessitates the further inquiry of whether the automobile would have cleared the
track and evaded the impact had the train been moving at a proper speed at the time
the trainmen observed the automobile emerge from behind the warehouse. Basic to
this inquiry are the speed of the automobile and the driving distance between it and a
position of safety. [C]
The testimony of the witnesses is in hopeless conflict as to the speed of the
automobile at the time of the collision. * * * Despite these deficiencies in the
evidence, the plaintiff argues that had the train been traveling at a proper speed the
driver of the automobile would "conceivably" have had some additional time to take
8
measures to avert disaster and the deceased would have had some additional time to
extricate himself from danger. Hence, the plaintiff reasons, the collision and loss of
life "might not" have occurred.
On the facts of this case, we must reject the escape theory advanced in this argument.
Because of the deficiencies in the evidence which we have already noted, it is devoid
of evidentiary support. The record contains no probative facts from which the Court
can draw a reasonable inference of causation under this theory. In essence, the
argument is pure conjecture.
Based upon the evidence of record, it appears almost certain that the fatal accident
would have occurred irrespective of the excessive speed of the train. It follows that
this speed was not a substantial factor in bringing about the accident.
We conclude that the plaintiff has failed to discharge the burden of proving that the
negligence of the defendant was a cause in fact of the tragic death. The judgment in
favor of plaintiff is manifestly erroneous. For the reasons assigned, the judgment of
the Court of Appeal is reversed, and the plaintiff's suit is dismissed at her cost.
SUMMERS v. TICE
Supreme Court of California, 1948. 33 Ca1.2d 80, 199 P.2d 1.
Actions by Charles A. Summers against Harold W. Tice and against Ernest Simonson
for negligently shooting plaintiff while hunting. From judgments for plaintiff,
defendants appeal, and the appeals were consolidated pursuant to stipulation.
[Plaintiff and the two defendants were members of a hunting party. Both defendants
negligently fired, at the same time, at a quail and in the plaintiffs direction. Plaintiff
was struck in the eye by a shot from one gun. There was no other satisfactory
evidence.]
CARTER, J. * * * The problem presented in this case is whether the judgment against
both defendants may stand. It is argued by defendants that they are not joint
tortfeasors, and thus jointly and severally liable, as they were not acting in concert,
and that there is not sufficient evidence to show which defendant was guilty of the
negligence which caused the injuries-the shooting by Tice or that by Simonson. * * *
The one shot that entered plaintiffs eye was the major factor in assessing damages and
that shot could not have come from the gun of both defendants. It was from one or the
other only.
It has been held that where a group of persons are on a hunting party, or otherwise
engaged in the use of firearms, and two of them are negligent in firing in the direction
of a third person who is injured thereby, both of those so firing are liable for the
injury suffered by the third person, although the negligence of only one of them could
have caused the injury. * * *
These cases speak of the action of defendants as being in concert as the ground of
decision, yet it would seem they are straining that concept and the more reasonable
basis appears in Oliver v. Miles, 144 Miss. 852, 110 So. 666. There two persons were
hunting together. Both shot at some partridges and in so doing shot across the
highway injuring plaintiff who was traveling on it. The court stated they were acting
9
in concert and thus both were liable. The court then stated: "We think that * * * each
is liable for the resulting injury to the boy, although no one can say definitely who
actually shot him. To hold otherwise would be to exonerate both from liability,
although each was negligent, and the injury resulted from such negligence."
[Emphasis added.] * * *
When we consider the relative position of the parties and the results that would flow if
plaintiff was required to pin the injury on one of the defendants only, a requirement
that the burden of proof on that subject be shifted to defendants becomes manifest.
They are both wrong doers, both negligent toward plaintiff. They brought about a
situation where the negligence of one of them injured the plaintiff, hence it should rest
with them each to absolve himself if he can. The injured party has been placed by
defendants in the unfair position of pointing to which defendant caused the harm. If
one can escape the other may also and plaintiff is remediless. Ordinarily defendants
are in a far better position to offer evidence to determine which one caused the injury.
This reasoning has recently found favor in this Court.
[T]he same reasons of policy and justice shift the burden to each of defendants to
absolve himself if he can-relieving the wronged person of the duty of apportioning the
injury to a particular defendant, apply here where we are concerned with whether
plaintiff is required to supply evidence for the apportionment of damages. If
defendants are independent tort feasors and thus each liable for the damage caused by
him alone, and, at least, where the matter of apportionment is incapable of proof, the
innocent wronged party should not be deprived of his right to redress. The
wrongdoers should be left to work out between themselves any apportionment. * * *
The judgment is affirmed.
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