Chapter 6b: Negligence
Kayla Jacobsen, Derek Atwood, Tony Speno
I. History and Formation of Negligence
The 19th Century brought about
many changes in America because of the
Industrial Revolution. The development of
railroads, factories, machinery and new
technologies increased the risk of injury or
harm to people and their property. Since
many of these injuries caused by the
industrial era did not fit within intentional
torts, pressure was put on the courts to
create a more suitable way to deal with
these new issues that arose from the
Industrial Revolution. The law of
negligence resulted.
II.
Negligence
A. Defining Negligence
Negligence: the failure to do something that a reasonable person,
guided by those considerations that ordinarily regulate human
affairs, would do, or doing something that a prudent and
reasonable person would not do.
In more general terms, negligence is the failure to use ordinary care to protect someone
from foreseeable risks of harm or doing something that a reasonably careful person would not do
under the circumstances. Negligence law varies, sometimes significantly, between jurisdictions
but is typically used to achieve compensation for injuries, particularly in personal injury
lawsuits. By proving negligence, the plaintiff may be entitled to damages for loss of income,
health costs, repairs, and pain and suffering. Proving a negligence case is broken into four
elements: duty, breach of that duty, damages, and causation between the breach and the damages.
The plaintiff must prove all of these factors by a “preponderance of the evidence”.
Preponderance of the evidence is achieved when the claims are more likely than not to be true
given consideration of the evidence.
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B. The Elements of Negligence
1. Duty of care
According to negligence law, violation can
only occur if the defendant owed a duty to the
plaintiff or general public.
Negligence law
depends on the idea that members of society must
carefully exercise their judgment when there is a
possibility of harming someone else. Reasonable
behavior may be difficult to define since there is a
broad range of applications in both everyday
personal life and in business or professional life.
In the 2004 Williams v. Cingular
Wireless case, Terry Williams sued
Cingular because he was involved in an
accident with another driver who was
allegedly using her cell phone.
Cingular filed for dismissal of this case
since they had no duty to Williams. The
Indiana Court of Appeals affirmed this
decision, because whether to use a cell
phone or not while driving is a
responsibility of the driver not the cell
phone company.
Not only does the duty of care need to be
proven, but also that it is owed to the other party.
Usually, the courts assume there is duty if the
defendant’s actions or conduct have a foreseeable cause of harm to the plaintiff. Also, duty may
be owed if a special relationship exists between the plaintiff and defendant. If this element
cannot be proven in its entirety, the case will be dismissed.
In Delgado v. Trax Bar & Grill (2005), Michael Delgado and his wife were at Trax Bar
& Grill. During the time spent in the bar, Delgado noticed a group of men staring menacingly at
him from across the room. After a couple of hours, Michael began to feel uncomfortable with the
situation and considered leaving the bar. His wife approached Jason Nichols, a Trax interior
security guard, and said “there was going to be a fight.” The Delgados then left the bar and
found a group of 12-20 men waiting in the parking lot, including the group that had been staring
at him in the bar. The group proceeded to attack Michael leaving him with a fractured skull,
subdural hematoma, sixteen day hospitalization, chronic headaches and personality changes.
2. Breach of duty
In this element, the plaintiff must show that the defendant has somehow not acted in a reasonable
manner and, therefore, violated his or her duty of care. Breach of duty is based on what is
normally expected for persons in that situation and the standard may be higher for professionals
in their line of work.
In the Delgado v. Trax Bar & Grill case, Trax breached its duty of care to the Delgados.
They did so by not ensuring safety to the couple. First, Trax requires security guards be
stationed in the parking lot to patrol and there was no guard. Second, once again, the wife’s
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warning and interior security guard’s admittance of hostile stares toward Delgado gave Trax a
duty to the couple which they breached.
3. Harm
Third, the plaintiff must prove that as a result of the defendant’s breach of reasonable
duty, he has suffered harm. Harm is any damage, mental or physical, to the plaintiff caused by
the defendant’s negligence. These damages fall under either personal injury or property damage
with correlating compensatory damages.
In the Delgado v. Trax Bar & Grill case, the harm was the injuries sustained by Michael.
He had a subdural hematoma, a fractured skull, sixteen day hospitalization, chronic headaches,
and personality changes.
4. Causation
The fourth and final element of negligence is showing causation between the breach of
duty and the damage. There are three types of causation.
“But for” causation is utilized by the courts to show that the plaintiff would not have
been harmed “but for” the breach of duty by the defendant.
John speeds down the road and does not have time to stop for Steve
who is legally crossing the street. If not but for John’s negligent
driving, he would have been able to stop for Steve crossing the street.
Proximate causation is employed to show how related – or “proximate” – the breach of
duty and the injury caused are. This can be difficult for the courts because they must decide that
it is not only “but for”, but that the damage or injury is also direct and foreseeable.
John is driving down the street and Steve runs a stop sign on a
perpendicular street. John is paying attention and slams on his breaks
to avoid Steve’s careless driving. However, Kyle is behind John and not
paying attention. Kyle rear-ends John. John will be able to sue both
drivers, Steve and Kyle, because both of their actions were negligent
and both were proximate causes to John’s wreck.
Intervening causation is what courts use to describe injuries sustained that are
unforeseeable.
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Suppose John wrecks into a car and is injured. The ambulance comes
to pick the injured John up to take him to the hospital. Then, the
ambulance wrecks and the ambulance driver, Steve, is killed. Steve’s
widow cannot sue John or the other person(s) from the initial wreck,
because this outcome was unforeseeable.
The Delgado v. Trax Bar & Grill case fits best into the proximate causation category, because
not only was the harm caused by the breach of duty, but it also was foreseeable. The group in the
parking lot was allowed to congregate outside, because Trax did not have its required guards on
duty to patrol the parking lot. Also, it was foreseeable, because even Nichols, a third party,
admitted that the stares from the attacker’s group were hostile.
Causation Review:
PALSGRAF v. LONG ISLAND R.R CO.
Court of Appeals of New York, 1928. 248 N.Y. 339, 162 N.E. 99.
BACKGROUND AND FACTS
The plaintiff, Palsgraf, was waiting for a train on a
Into which causation
station platform. A man carrying a package was rushing to
category does this
catch a train that was already moving. As the man attempted to
example fall? Why?
jump aboard the moving train, he seemed unsteady and about to
fall. A railroad guard on the car reached forward to grab him,
and another guard on the platform pushed him from behind to
help him on the train. The man's package, which contained fireworks, fell on the railroad tracks
and exploded. There was nothing about the package to indicate its contents. The explosion
caused scales located at the other end of the platform to fall upon Palsgraf, causing injuries for
which she sued the railroad company. The court ruled that the injuries were not foreseeable to
the railroad.
II. Defenses
There are traditionally two defenses to negligence; however, many states have introduced
a third defense.
A. Assumption of Risk
Assumption of Risk occurs when the plaintiff knowingly puts himself at risk. Following
old common law, a person who willingly put themselves at risk could not sue the other party who
negligently put them in danger. However, this person may still be eligible for collecting
damages if all elements have been proven.
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There are two types of assumption of risk: implied or expressed. The risk is implied
when the facts show that the plaintiff had knowledge of the risk. On the other hand, the plaintiff
can expressly assume the risk if he or she enters into a contract eliminating the duty of care by
the defendant.
There is one exception to the Assumption of Risk defense. The Danger Invites Rescue
Doctrine allows a civilian attempting to be a hero to sue even though they knowingly took the
risk. Since this only includes civilian rescuers, any police, paramedics, or ambulance people are
still not permitted to collect under this doctrine.
For example, if there is a car accident where John is trapped inside of
one of the cars, Steve can attempt to help them and still sue for
damages if he is hurt.
Assumption of risk does not apply to intentional torts, since that would offer protection
to the people who intentionally caused harm. Most states now view assumption of risk as a type
of fault. This means it may be possible for a plaintiff to receive a percentage of his or her
damages.
B. Contributory Negligence
Based on old common law, contributory negligence occurs when the plaintiff shows no
care for his or her own safety. When applied, the plaintiff would collect nothing. Most states
have eliminated contributory negligence rules. In the states that continue to recognize
contributory negligence, a plaintiff that has any fault receives nothing.
HODGES V. NOFSINGER
183 So. (2d) 14 (1966)
This was an action against automobile driver to recover for injuries sustained by
passenger-owner when driver kissed her and automobile veered across the road into a canal.
The Circuit Court for Dade County entered final judgment on a verdict for plaintiff, and
defendant appealed. The District Court of Appeal, Swann, J., held that conflicting evidence as to
whether passenger-owner cooperated in kiss or was so surprised that she did not have time to
protest or object presented for jury as to contributory negligence of passenger-owner.
Judgment affirmed.
SWANN, J. The defendant, Gary C. Hodges, appeals from a final judgment entered for
the plaintiff, Mary Nofsinger, after a jury trial, in the sum of $7,500.00. The sole question on
appeal is whether the plaintiff was guilty of contributory negligence, as a matter of law, thereby
precluding her from any recovery from the defendant in this cause.
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The parties have referred to this as the "kissing case." The defendant's version of the
facts on appeal are as follows. The parties had seen each other many times prior to the accident.
The plaintiff was a single woman, about twenty-five years of age, and the defendant was a
member of the United States Air Force, stationed at Homestead, Florida at the time the accident
occurred. On that day, the defendant and a friend went to the plaintiff's house. The friend had
to return to the base early, but the defendant wanted to stay and the plaintiff agreed to take him
back to the base in her automobile later in the evening.
At about 8:00 P.M. they departed for Homestead with the defendant driving the plaintiff's
car and the plaintiff sitting close to him on the front seat, "about the middle of the car." She
testified that the defendant drove normally, and made the following answers to questions
propounded at trial:
Q: "From the time you got onto Allapattah Drive up to the time of the accident, describe what
happened?"
A: "Well, we were just driving along Allapattah, and Gary kissed me, and we went off the
road into the canal."
Q: "You didn't protest or object, or push Gary away at all during the kissing, did you?"
A: "No I didn't…
A: "The kissing occurred for a number of seconds, and we hit right then, I mean there
was no pause in between."
Q: "Would you please tell me, please, isn't it a fact that you did kiss fully on the mouth?"
A: "The kiss was fully on the mouth."
Q: "And the kiss continued for a number of seconds, didn't it?"
A: "I felt at the time that it did."
Q: "And it endured up to the time of the accident?"
A: "Yes."
Q: "This wasn't the first time you kissed, was it?"
A: "No."
The defendant contends that on these facts and circumstances the plaintiff cooperated in
the kissing, with a reckless disregard to her safety, and was therefore guilty of contributory
negligence as a matter of law.
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The plaintiff sets forth the facts in a different light than those of the defendant. The
plaintiff contends, and submitted to the jury, the same preliminary factual situation as the
defendant. The essential difference in the evidence of the parties is summarized as follows. The
defendant was driving in a normal manner, looking straight ahead, and suddenly, without any
prior conversation or warning, the defendant kissed the plaintiff. This surprised her and she did
not react or cooperate. She did not have an opportunity to protest or object to the defendant's
kissing her before the car veered across the road through a guard rail and into a canal, which
resulted in her injuries.
It is apparent from the testimony that there are conflicts in the evidence as the issue of
contributory negligence; that is, whether the plaintiff cooperated in the kiss, or whether she was
so surprised that she did not have time in which to protest or object to the actions of the
defendant. The conflicting evidence on this issue was properly submitted to the jury to be
resolved by it. Deane v. Johnston, Fla. 1958, 104 So. (2d) 3; Reiss v. 1550 Collins Corp., Fla.
App. 1964, 161 So. (2d) 572; Goldstein v. Great Atlantic & Pacific Tea Company, Fla. App.
1962, 142 So. (2d) 115.
On appeal by the defendant from a final judgment based on a jury verdict, all testimony
and proper inferences therefrom are required to be construed most favorably to the plaintiff. F.
W. Woolworth Company v. Stevens, Fla. App. 1963, 154 So. (2d) 201. Inasmuch as we are
required to construe the testimony and proper inferences therefrom most favorably to the
plaintiff, we cannot say on appeal that the plaintiff was guilty of contributory negligence, as a
matter of law.
For the reasons stated, the judgment appealed from is therefore affirmed.
C. Comparative Negligence
Many states now utilize comparative negligence, meaning that the court decides how
much fault should be assigned to each side. After this decision, the damages are awarded
proportionally to each party based on the percentage of fault.
For example, John and Steve are in a car wreck and John suffers $50,000 in damages
and is suing Steve. A court decides that Steve is 60% at fault. How much would John receive?
According to the formula, John’s Recovery = 60% X 50,000 which is equal to $30,000 in
damages.
If a person has a $100,000 in damages and is 20% at fault, the person gets $80,000
($100,000 - .20*$100,000). The same applies to a defendant who counterclaims. If the plaintiff
has a $100,000 in damages and is 20% at fault and the defendant has $50,000 in damages and is
80% at fault, in Missouri the plaintiff is entitled to $80,000 on the claim, and the defendant is
entitled to $10,000 ($50,000 - .80*$50,000.) This means the plaintiff gets a net of $70,000
($80,000-$10,000). This is called pure comparative negligence.
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This example is known as pure comparative negligence. Missouri uses this rule along
with about 12 other states.
There is another type of comparative negligence called modified comparative negligence.
In states that apply this type of comparative negligence, if one party is 50% or more at fault, the
party receives nothing. About 33 states use these rules. In some of these states 50% is the cutoff
while in others the plaintiff has to be more than 50% at fault to lose the right to compensation
IV.
Immunity
A. Age Immunity
In most states if the defendant is younger than seven years old, age immunity applies.
Because of this immunity, the defendant cannot be sued. Also, the parents cannot be sued either
unless they are actually directing the child to do something wrong.
B. Family Immunity
According to family immunity, spouses cannot sue each other for tort, parents cannot sue
their children for tort or vice versa. However, most states have abolished this rule.
C. Governmental or Sovereign Immunity
Another type of immunity is governmental or sovereign immunity. This is a common law
rule. A person cannot sue a government entity in tort. Like family immunity, some jurisdictions
have dropped this.
Some states have all, some, or none of these immunities.
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