Negligence
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| Tort law II |
|---|
| Part of the common law series |
| Negligent torts |
| Negligence · Negligent hiring |
| Negligent entrustment · Malpractice |
| Negligent infliction of emotional distress |
| Doctrines affecting liability |
| Duty of care · Standard of care |
| Proximate cause · Res ipsa loquitur |
| Calculus of negligence · Eggshell skull |
| Vicarious liability · Attractive nuisance |
| Rescue doctrine · Duty to rescue |
| Comparative responsibility |
| Duties owed to visitors to property |
| Trespassers · Licensees · Invitees |
| Defenses to negligence |
| Contributory negligence |
| Last clear chance |
| Comparative negligence |
| Assumption of risk · Intervening cause |
| Strict liability |
| Ultrahazardous activity |
| Product liability |
| Nuisance |
| Other areas of the common law |
| Contract law · Property law |
| Wills and trusts |
| Criminal law · Evidence |
Negligence is a legal concept usually used to achieve compensation for accidents and injuries. Negligence is a type of tort or delict and a civil wrong, but can also be used in criminal law. Negligence means conduct that is culpable because it misses the legal standard required of a reasonable person in protecting individuals against foreseeably risky, harmful acts of other members of society. Negligent behavior towards others gives them rights to be compensated for the harm to their body, property, mental well-being, financial status, or relationships. Negligence is used in comparison to acts or omissions which are intentional or wilful. The law of negligence at common law is one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of this discussion.
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[edit] Elements of negligence claims
In appellate court decisions, negligence suits have historically been analysed in distinct stages. First, the defendant must have had a duty of care towards the claimant. The courts have long established that all persons have a duty to use that degree of care that an ordinarily prudent person would have used under the circumstances, so that, at trial, the existence of the "duty" is predetermined. However, the constitutional right to jury trial on fact questions has established overwhelmingly, at least in the US, that the determination of whether the behavior of a particular defendant in any given case constitutes negligence is ordinarily a unique question of fact for jury determination. [1] Proving negligence does not, alone, support an award of damages. Second, obviously from the definition above, the claimant must show that the defendant has breached that duty by not exercising reasonable care. The plaintiff must further show that the defendant's negligence contributed to cause harm to the claimant. Fourth, the harm must not be too remote a consequence of the negligence; that is, the negligence must be a "proximate cause" of the harm. Finally the claimant must be able to establish what kind of damages, or compensation, he should get for his or her harm. "The broad agreement on the conceptual model," writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice," he goes on to warn, "several varieties of confusion or conceptual mistakes have sometimes occurred."[2]
[edit] Duty of care
The case of Donoghue v. Stevenson[3] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. Mrs Donoghue was given ginger beer by her friend, who bought it from a shop, supplied by Mr Stevenson in Scotland. Mr Stevenson did not know Mrs Donoghue, but the ginger beer he made had a snail in it which made Mrs Donoghue ill. There was no relationship of contract, as signified by payment, between the person injured and the shop keeper, as the friend had made the payment, and so no legal cause of action in contract was possible. Nor was there a contract or "privity" with the manufacturer, Mr David Stevenson. More importantly, there was no case before about manufacturers harming people through opaque bottles. Lord MacMillan said that we should recognise this new category of tort, (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin, interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not harm thy neighbour', and went on the define neighbour. Reasonably foreseeable harm must be compensated. This is the first principle of negligence. In England the more recent case of Caparo v. Dickman [1990] introduced a 'threefold' test for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability.
[edit] Breach of duty
- See also: Breach of duty in English law
Once it is established that the defendant owed a duty to the plaintiff/claimant, the second question is whether the duty was breached. The test is both subjective and objective. If the defendant actually realized that the plaintiff/claimant was being put at risk, taking the decision to continue that exposure to the risk of injury breaches the duty. If the defendant did not actually foresee that another might be put at risk, but a reasonable person in the same situation would have foreseen the possibility that another might be injured, there will be a breach.
If you unreasonably run a risk and harm to others or their property results, you have breached your duty of reasonable care. One example was the case of Bolton v. Stone[4] in the English countryside, where cricket balls were seldom hit for six from the pitch, but one day one was. It hit Mrs Bolton in the head, who was walking nearby. She was hurt but the court said she did not have a claim. However, 'reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v Minister of Health[5], the past should not be viewed through rose coloured spectacles. So if medical science said that medical jars could not get contaminated in the 1950s, but they did, the professionals of the time were not negligent. They took reasonable risks and care, even if some patients were harmed.
For the rule in the U.S., see: Calculus of negligence
[edit] Factual causation
For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Though it sounds simple, the causation between one's breach of duty and the harm that results to another is vastly complex.
Many of the cases about workplace illness through asbestos has been affected by the rules on causation, in litigation that has stretched for decades. The simple idea of me causing you harm has been complicated into issues about insurance bills and liquidating companies, and how much companies should compensate if they were one of many employers responsible for asbestos use. The basic test of causation is to ask 'but for, or without my breach of duty would you be harmed?' If the answer is 'no' then I am liable. Even more precisely, if I materially increase the risk of harm to you then I can be sued to the value of your harm that I cause together with other parties who are still solvent.
- See also: Causation in English law and Breaking the chain
[edit] Legal causation or remoteness
Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo J, "liability in an indeterminate amount for an indeterminate time to an indeterminate class." [6] It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?
For instance, in Palsgraf v. Long Island Rail Road Co.[7] the judge decided that Mrs. Palsgraf being hit by some weighing scales was too bizarre to be anyone's fault. A train [[conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor did not help very well. The man fell from the moving train. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. The shockwaves struck some weighing scales causing them to fall, unfortunately, on Mrs. Palsgraf who was standing next to them. [8]Because she was hurt, she sued the train company who employed the conductor. (She could have sued the man or the conductor himself, but they did not have as much money as the company.) The judge hearing the case ruled that she could not recover any money because the harm was too remote. The conductor did not have a duty of care towards Mrs. Palsgraf and could therefore not be held legally responsible for her injuries.
Remoteness takes another form, seen in the Wagon Mound No. 2[9]. The Wagon Mound was a ship in Sydney harbour. The Wagon Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which cancelled out the liability of the ship owner. In Australia, the concept of remotness, or proximity, was tested with the case of Jaensch v. Coffee.[10] The wife of a policeman, Mrs Jaensch suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably forseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.
[edit] Damage
Even though there is breach of duty, the negligence suits will not be successful unless there is provable injury. The plaintiff/claimant must have suffered loss or damage flowing naturally from the breach of the duty of care if damages are to be awarded. The damage may be physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss of earnings consequent on a personal injury), reputational (e.g. in a defamation case), or in relationships where a family may have lost a wage earner through a negligent act. In English law, at least, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisors, and other professions where money is central to the consultative services.
Emotional distress has been recognized as compensable in the case of negligence. The state courts of California allowed recovery for emotional distress alone — even in the absence of any physical injury. [11]
[edit] Procedures and law in civil law jurisdictions
In civil law systems such those found in continental Europe, Quebec, and Puerto Rico, negligence is classified as a form of extra-contractual responsibility, sometimes called a quasi-delict in distinction to the more willful delicts within the conceptual framework of the law of obligations. There are some differences in the comparable laws of negligence in civil law jurisdictions, but the basic principles of delict and quasi-delict are similar albeit established by courts applying the inquisitorial system rather than the adversarial system. So investigative judges or magistrates will interview all parties and witnesses, and then prepare reports to be submitted to a panel of judges for final decision. That decision may also be appealed several levels through a judicial hierarchy.
[edit] Damages
Damages place a monetary value on the harm done, following the principle of restitutio in integrum (the Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim. But, particularly in the U.S., punitive or exemplary damages may be awarded in addition to compensatory damages to reflect the egregious nature of the defendant's conduct, e.g. that the defendant was malicious or callously indifferent.
Damages are, in general, compensatory and not punitive in nature. This means that the amount paid matches the plaintiff/claimant's actual loss (in cases involving physical injury, the amount awarded should aim to compensate for the pain and suffering). It is not the court's intention to punish the defendant. The award should be sufficient so as to put the plaintiff/claimant back in the position he or she was before the tort was committed and no more, because otherwise the plaintiff/claimant would actually profit from the tort. The award of damages may include the following heads of damage:
- Special damages - losses suffered from the date of the tort up until the date of trial and which can be precisely quantified in monetary terms.
- General damages - losses that cannot be quantified exactly in monetary terms (the actual pain, suffering, and loss of amenity caused by the negligent act), as well as expected future losses from the date of trial (e.g. continuing pain and suffering, and loss of earnings). Where the plaintiff/claimant proves only negligible loss or damage, or the court is unable to quantify the losses, the court may award nominal damages.
- Punitive damages - are awards of amounts greater than those needed to compensate the victim and are intended to deter intentional, usually malicious, wrongdoing. They are not available where only negligence has been proved.
[edit] See also
[edit] Footnotes
- ^ http://lawreview.kentlaw.edu/articles/77-2/Kelley%20FINAL3.pdf
- ^ Deakin, Tort Law, 218
- ^ Donoghue v. Stevenson [1932] AC 532
- ^ Bolton v. Stone [1951] A.C. 850
- ^ Roe v Minister of Health (1954) 2 AER 131
- ^ Ultramares Corp. v. Touche(1931) 255 N.Y. 170, 174 N.E. 441
- ^ Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99
- ^ Interestingly, Mrs. Palsgraf's physical injuries were minor and were almost certainly caused by the stampede of travelers on the platform rather than the concussion of the exploding fireworks. These details have not, however, stopped the case from becoming the source of extensive debate in American tort law.
- ^ Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1966] 2 All E.R. 709
- ^ Jaensch v. Coffee (1984) 155 CLR 578
- ^ See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
[edit] References
- Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin's Tort Law. Oxford University Press. ISBN 0199257116.
[edit] External links
- Perry, Ronen, "Relational Economic Loss: An Integrated Economic Justification for the Exclusionary Rule", Rutgers Law Review, Vol. 56, No. 3, pp. 711-88, Spring 2004
- Negligence - Encyclopedic Article
