#8857 - Negligence - Tort Law

Negligence

1. Introduction

Negligence is an all-purpose cause of action that can be tailored to fit almost every kind of human activity imaginable.

To establish a cause of action in negligence, plaintiff must prove facts that establish each of 5 elements:

1. Duty

Members of society owe a duty to act reasonably to avoid causing physical harm to each other.

This does allow for exceptions in certain situations (not legally required call 911 for stranger having heart attack)

2. Breach of Duty

Once duty has been established, must show that the defendant failed to act reasonably (rather breached the duty)

1^st decide what would be reasonable under circumstances

2^nd find that defendant failed to meet the standard established above.

3. Cause-in-fact (causal link)

Must prove connection between negligent conduct & harm suffered.

4. Proximate Cause

A single negligent act may produce untold & unforeseeable consequences, but defendant is not necessarily liable for all the damage or harm done.

5. Harm

It is necessary for plaintiff to suffer actual, tangible harm in order to make out prima facie tort of negligence

An actor has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

A Failure to breach a duty should not be confused with “no duty”.

2. General Standard of Care: Negligence Balancing

Most often a jury decides if a defendant’s conduct was unreasonable & therefore negligent.

But where judge concludes that reasonable persons cannot differ, the judge sits as a super jury with the power to decide, under the circumstances, that negligence has not been or cannot be established.

Learned Hand risk balancing…

3. Qualities of the Reasonable Person

This is flexible and is also dependent on the times in society.

Generally actor (for negligence) is judged by the standard of what a reasonable person would have done under the same or similar circumstances.

Vaughn v. Menlove (1^st case of reasonable person)

Hay stack next to plaintiff’s house could spontaneously combust. Menlove built a chimney thinking would help but actually cause combustion, though stupid, the court said must judge by what a reasonable man would do in the same situation.

1. What the reasonable person knows or should know (like the movable parts of a car if going to drive, ie tire blowout).

Restatement 3^rd §12 Knowledge and Skills

“If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.”

Less knowledge will not excuse you, you will be held to the reasonable standard of care.

2. How the Reasonable Person Responds to Emergency

Conduct that might otherwise be considered negligent may be reasonable given the short amount of time in which the actor must make a decision.

(This is only a factor to consider, and courts are split as to whether or not to give emergency instructions to jury)

3. Does the Reasonable Person Follow Customary Practice?

This depends, however a jury is unlikely to find an actor not negligent if he violates industry standards.

It will also depend on if it actually is related to negligent act.

And depends on the reasonableness of the customary practice.

Customary Practice evidence is usually very powerful.

4. The Physical Attributes of the Reasonable Person

Physical attributes are one of the circumstances to be considered in deciding whether an actor was negligent.

1. Physical Disability or Attributes-

Negligence is determined by what is reasonable conduct under the circumstances, one circumstance includes the physical disability.

In cases of sudden incapacitation (heart attack, stroke) if the condition is one that the actor could not have foreseen, he is not negligent.

Ex. Blind man runs into person walking and injures them. Can consider if he used the reasonable care that other blind persons would use in the same or similar circumstances.

2. Mental Incapacity or Mental Illness

5 Reasons American Courts refuse to take into consideration mental incapacity in judging the reasonableness of person:

1. As between two innocents, loss should be allocated to the one who occasioned the loss.

2. Imposition of liability gives incentives to caretakers to prevent harm.

3. Could allow for fake claims to avoid liability

4. Tough to draw the line between incapacity & temperament, intelligence, etc.

5. Liability forces incapacitated to pay for damage if want to be treated as ordinary citizens.

Restatement 3^rd Liability for Physical Harm

“an actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

5. To What Standard of Conduct is a Child Held?

Restatement 3^rd §10 Children:

1. A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in b or c,

2. Child less than 5 is incapable of negligence

3. Subsection (A) does not apply when child is engaging in a dangerous activity that is usually undertaken by adults (driving).

Illinois Rule:

If over 14- rebuttable assumption the child able to meet the adult reasonable person standard and no allowance made for age, intelligence, experience.

Between 7-14, presumption child not capable of meeting the adult standard.

Under 7, child cannot be found negligent.

Can introduce age, intelligence, experience factors in attempt to raise or lower standard of care.

6. Standard of Care for Professionals

Generally, one who holds himself out to be a professional or expert, is held to a standard of knowledge & skill normally possessed by members of that profession.

Use of expert testimony is used to establish this care level, and judge will give ‘reasonable professional” instruction and “national” standard of care.

Where negligence is so obvious that even layman could see, expert testimony no necessary.

4. Judicially Determined Standards of Care

1. Courts using Risk-Utility Balancing to Set Standards of Care

In most negligence cases, juries perform 2 functions:

1. Resolve conflicts between the parties as to what occurred

2. Set the standard of reasonable care under the circumstances

Court will often (Learned Hand) weigh the potential for harm against the burden of acting to prevent such a harm.

This can end up being too broad & make mischief since negligence cases are very fact sensitive.

2. Courts using Statutes to Set Standard of Care (Negligence Per Se)

Most common way courts move away from case-by-case fact-sensitive standard-setting is by using Statutes and Regulations to establish the standard of reasonable care.

The party who fails to follow the rule, or who falls below the statutory standard of care, is held to be NEGLIGENT PER SE.

The Judge “imports” the statutory standard as the minimum standard of care to which an actor must conform.

Courts have a vital role to play in deciding when appropriate to use the statutory standard as the tort standard of...