Negligence is distinguished from intentional torts because there is a lack of intent to cause harm. If a pilot intentionally crashed an airplane and harmed others, for example, the tort committed may be assault or battery. When there is no intent to harm, then negligence may nonetheless apply and hold the pilot or the airline liable, for being careless or failure to exercise due care.
Note that the definition of negligence is purposefully broad. Negligence is about breaching the duty we owe others, as determined by state tort law.
This duty is often broader than the duties imposed by law. Colgan Air, for example, may have been fully compliant with applicable laws passed by Congress while still being negligent. In a way, the law of negligence is an expression of democracy at the community and local level, because ultimately, citizen juries as opposed to legislatures decide what conduct leads to liability.
To prove negligence, plaintiffs have to demonstrate four elements are present. First, they have to establish that the defendant owed a duty to the plaintiff. Second, the plaintiff has to demonstrate that the defendant breached that duty.
Finally, the plaintiff has to demonstrate legally recognizable injuries. First, the plaintiff has to demonstrate that the defendant owed it a duty of care. On the other hand, if you ran a stop sign, which then caused the other driver to drive into a ditch, you would owe that driver a duty of care.
Another way to look at duty is to consider whether or not the plaintiff is a foreseeable plaintiff. In other words, if the risk of harm is foreseeable, then the duty exists. Take, for instance, the act of littering with a banana peel. If you carelessly throw away a banana peel, then it is foreseeable that someone walking along may slip on it and fall, causing injuries.
Under tort law, by throwing away the banana peel you now owe a duty to anyone who may be walking nearby who might walk on that banana peel, because any of those persons might foreseeably step on the peel and slip. An emerging area in tort law is whether or not businesses have a duty to warn or protect customers for random crimes committed by other customers. By definition, crimes are random and therefore not foreseeable.
However, some cases have determined that if a business knows about, or should know about, a high likelihood of crime occurring, then that business must warn or take steps to protect its customers.
For example, in one case a state supreme court held that when a worker at Burger King ignored a group of boisterous and loud teenagers, Burger King was liable when those teenagers then assaulted other customers. In another case, the Las Vegas Hilton was held liable for sexual assault committed by a group of naval aviators because evidence at trial revealed that the hotel was aware of a history of sexual misconduct by the group involved.
The concept of duty is broad and extends beyond those in immediate physical proximity. In a famous case from California, for example, a radio station with a large teenage audience held a contest with a mobile DJ announcing clues to his locations as he moved around the city.
The first listener to figure out his location and reach him earned a cash prize. One particular listener, a minor, was rushing toward the DJ when the listener negligently caused a car accident, killing the other driver. During a negligence trial, the radio station argued that hindsight is not foreseeability and that the station therefore did not owe the dead driver a duty of care.
The California Supreme Court held that when the radio station started the contest, it was foreseeable that a young and inexperienced driver may drive negligently to claim the prize and that therefore a duty of care existed.
Weirum v. RKO General , 15 Cal. Radio stations should therefore be very careful when running promotional contests to ensure that foreseeable deaths or injuries are prevented. The general rules surrounding when a duty exists can be modified in special situations.
For example, landowners owe a duty to exercise reasonable care to protect persons on their property from foreseeable harm, even if those persons are trespassers. Donoghue was given a bottle of ginger beer by a friend, who had purchased it for her. After drinking half the contents, she noticed that the bottle contained a decomposing snail and suffered nervous shock as a result.
Under contract law, Donoghue was unable to sue the manufacturer because her friend was party to the contract, not her. However, the House of Lords decided to create a new principle of law that stated everyone has a duty of care to their neighbour, and this enabled Donoghue to successfully sue the manufacturer for damages. Harry is involved in an accident in which his car is hit by one driven by Alex. As a consequence of the accident Harry breaks a leg and is unable to work for two months.
Can Harry sue Alex for damages? On the face of things the answer seems obvious. Harry was injured as a result of Alex driving into his car and so it seems fair that he should be able to sue him. People have accidents everyday — should they all be able to sue each other for every little incident?
If they are then the courts would be overwhelmed with cases. Thankfully, in order to prove negligence and claim damages, a claimant has to prove a number of elements to the court. These are:. Even if negligence is proved, the defendant may have a defence that protects them from liability, or reduces the amount of damages they are liable for.
As we saw earlier, the concept of a duty of care was created in the Donoghue case. The House of Lords stated that every person owes a duty of care to their neighbour. This is a very wide and complicated definition that could include almost anyone — if still in operation today the courts would most certainly be overrun with cases. What does this mean for Harry? In many cases brought before the courts it is evident that a duty of care exists between the defendant and the claimant.
The real issue is whether or not the actions of the defendant were sufficient to meet their duty. To determine this, the court will set the standard of care that they should have met. If the defendant failed to act reasonably given their duty of care, then they will be found to have breached it. For example, if the claimant is vulnerable, such as being disabled or frail, it is reasonable to expect the defendant to have paid them special attention or taken extra care over them as compared to someone who is fit and healthy.
Other circumstances which may be taken into account include whether:. Back to the case of Harry and Alex. In determining whether or not Alex broke his duty of care, a court will consider whether or not, given the circumstances, he drove as a reasonable person would have.
For example, if it was foggy or wet at the time, he would be expected to show that he drove cautiously. In extraordinary cases, the facts may be so overwhelmingly in favour of the claimant that the court decides the defendant should prove that they were not negligent.
The legal term for this is res ipsa loquitur meaning the facts speak for themselves. It applies in circumstances where the cause of the injury was under the control of the defendant and that the incident would not have occurred if they had taken proper care.
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