History
Negligence was not really seen as a separate tort for a long time. Instead, as time passed, it became attached to those who professed to be competent to the public in a certain thing. For instance, a doctor, innkeeper, etc. were seen to be professionals and any improper conduct would include Negligence.
However, with the passing of more time, negligence has become a tort separate from other torts. This is because there is no longer a distinction between direct and indirect injuries. Therefore, because not every tort is intentional, negligence began to be used more fully.
Additional Notes
Because of the growth of civilization and how people become closer one to another, the courts have decided that people have a duty to others.
Elements of Cause of Action
Below are the elements one must meet to bring a cause of action of negligence:
- Was there a duty to reasonable care (the court decides whether or not there was one)?
- Was there a breach of the duty (decided by the jury)(one can breach the conduct but if there was no duty, they cannot be held liable)?
- Determine if the result caused by the conduct
- Prove actual damages (not nominal)
A Negligence Formula
Lubitz v. Wells
Superior Court of Connecticut, 1955. 19 Conn. Sup. 322.
James Wells and his son are defendants, Lubitz is the plaintiff. Negligence was found on the son, father issued demurrer (motion to dismiss) which is now in review.
Question
Was the boy negligent? Was his father?
Rule
Negligence can be found if you fail to warn others of your intention and know that it could cause damage.
Negligence cannot be found if the action is one of common sense
Holding
There was negligence for the son, but not for the father. Demurrer is sustained.
Facts
Father had left golf club outside. When a friend was visiting, his son picked up the club, swung it, and hit his playmate. They now file suit.
Analysis
The boy was negligent because he did not warn the girl of his intentions to swing the club when he knew she was in a position that could have been hit.
However, the father was not negligent because his action of leaving the club outside was not uncommon. The danger was not so obviously and intrinsically dangerous.
Takeaway
To what extent is this the case? What if the object was a baseball bat, hose, or a shotgun? When does the court find that these items become intrinsically dangerous?
Additional Notes
Although it would probably be safer to put the objects away in a safer location, it could put an undue burden on the defendant. For these common objects, the burden is too great for the danger being presented.
Blyth v. Birmingham Waterworks Co.
Court of Exchequer, 1856. 11 Exch. 781, 156 Eng.Rep. 1047.
Waterworks is the defendant. Plaintiff won and defendant appealed.
Question
Did the facts show that the defendants were guilty of negligence?
Rule
Negligence is the omission to do something which a reasonable person would have done.
Holding
The defendants are not liable of negligence. Verdict for the defendants.
Facts
Defendants had put in a water main 25 years previously. One cold winter, the line broke and leaked into the house causing damage.
Analysis
Because no reasonable person would have expected the weather that was encountered, the defendants are not liable. They had acted reasonably for the circumstances they were expected to act.
Takeaway
One is not negligent for the damage caused due to unprecedented weather.
Additional Notes
How often does it take for something to be foreseeable? Here, we are concerned about the harm, however, when we look at the probability of something like this happening again, it’s not very likely. So, we can weigh this factor of probable foreseeability.
Pipher v. Parsell
Supreme Court of Delaware, 2007. 930 A.2d 890.
Pipher is the plaintiff, Parsell is the defendant. Plaintiff lost, the trial didn’t go to a jury (decided as a matter of law), and appealed.
Question
Was the trial court wrong to not send this case to the jury (determining that there was no duty to act).
Rule
A driver has the duty of care for their passengers
A driver is negligent if they do not properly respond to that duty.
Holding
There is a duty, the driver breached the duty. Therefore, the judge was wrong to not send the case to the jury. Case remanded.
Facts
The plaintiff, was in the front passenger seat with the driver and another passenger (both defendants). The passenger yanked on the steering wheel. This shocked and surprised all passengers, but the driver did not attempt to chide this action. The plaintiff testified that they laughed about it instead. Thus, the other passenger yanked on the steering wheel again, causing an accident.
The trial court said that this was no duty because since it had happened once, the driver didn’t need to expect it to happen again.
Analysis
The conduct occurred initially was unprecedented. Had the accident occurred then, there would have been no negligence because the action was unforeseeable. However, since the defendant laughed it off, and make no effort to prevent it from happening again, they can be found negligent. This is also evidenced because the defendant testified that there were things they could have done to prevent the passenger from yanking again.
Takeaway
Need a duty, need a breach. There is no breach if the circumstances cannot be foreseen. However, if they can be foreseen and no action is taken to prevent the danger, there is negligence.
Additional Notes
Here, we are focusing on the danger (gravity of harm). Even if it isn’t so foreseeable that someone might grab the wheel again, given the dangerous circumstances of driving quickly, we need to weigh this danger.
Take the features from the cases above. If a person is texting and driving would we find it negligent to text somebody if we know they would see it on the road?
- Burden on the defendant
- Is it foreseeable?
- What is the gravity of harm?
Because it would not be that great of a burden on the defendant, it can be known to occur, and it’s dangerous to drive distractedly, a person can be found negligent for causing another person to drive distractedly.
Chicago, B. & Q.R. Co. v. Krayenbuhl
65 Neb. 889 (1902).
Krayenbuhl is the plaintiff and won in trial court.
Question
How do we determine whether this action is negligent?
Rule
The court will weigh the danger to the public verses the benefit to the public by considering:
- Character and location of the premises
- The purpose for which they are used
- Probability of injury
- Precautions necessary to prevent injury
- Relations such precautions bear to the beneficial use of the premises.
Holding
The instructions were insufficient, but seeing how the company required a lock on the machinery, the machinery lock should have been kept.
Facts
Four year old boy lived and passed by a turntable often. The company had a policy to keep a lock on the machinery (knowing families played nearby. One day, child was playing with other boys when they got on the turntable (unlocked) and began to play. Plaintiff, got stuck and injured from the moving parts.
The defense argued that the boys were trespassing.
Analysis
Even though the boys were trespassing, the company has a certain duty to maintain their property. Therefore, the court is going to look at whether the party kept their duty by considering the rules above. As a result, the court says that the lock should have been in place. However, each case is to be examined on a case by case basis.
Takeaway
- Owners have a duty to maintain their property along with the considerations of public good.
- For negligent based cases, the court will evaluate the factors to determine whether the public good was met.
Additional Nots
Next the court is going to weigh the utility of activity. Because a turntable does a lot of public good (saving the railroad money, minimize the cost pushed to consumers), there can be room to account for occasional injuries.
Davison v. Snohomish County
149 Wash. 109 (1928).
Davison is plaintiff. He won in trial court.
Question
How do we determine if a person is negligent?
Rule
If the burden to the public is greater than the potential danger, the city has no duty of maintenance.
Holding
There was no negligence, reversed and dismissed.
Facts
Plaintiff entered onto an elevated bridge, lost control, and broke through the guardrail before plunging into the ground below. He sued for damages claiming that the guardrail was constructed poorly.
Analysis
The court examines the purpose of the guardrail. Because it was created for horses and not for vehicles, the court has no duty to maintain the guardrails. This is because the public burden for maintenance is too great for the potential danger. Therefore, there is no negligence.
Takeaway
With passing time, duty to do something can change. Later, a case overturned Davidson because technology and road development had progressed greatly.
Additional Notes
Maintaining stuff like these guardrails become quite expensive. So, we can’t find a city or counsel negligent for omitting from those things that they don’t have the money to do, even if it’s for the burden good.
United States v. Carroll Towing Co.
Plaintiff is the United States (flour owners) and Conners Co. (barge owners). Trial court found Conners partially responsible.
Question
How do we determine negligence?
Rule
If the burden on defendant is less than the injury * the probability, then they can be found negligent. “B < I*P
Holding
The burden here was not less than the injury times the probability of incident occurring. The defendant partially liable, but Conners is also liable.
Facts
Conners owns a barge which is charted to Pennsylvania Railroad Co. who ships flour for the United States. Conners had to supply a “bargee” who would keep watch of the barge during the working hours. While the bargee was away, the ship broke free of the restraints, hit the propeller of another ship, dumped the cargo and sank. The United States sought compensation for the flour and Connors sought compensation for the barge.
Carroll Towing is negligent but argues here that they are not fully responsible because there was no bargee (who could have prevented this. So, here we are looking at whether Conners is negligent because the bargee is gone.
Analysis
Here the court looks at three factors:
- The probability that the barge would break away
- The gravity of the resulting injury
- And the burden of inadequate precautions.
Together, these factors bring together the formula B < I*P. Here, because the defendant was gone during the working hours (had left the ship for 21 hours), and the sinking could have been avoided if someone was on board, he can also be held liable. In other words, he had a duty to care for the ship as much as the towing company did.
Takeaway
Once again, negligence is found on a case by case basis. Sometimes the court will find that negligence has not occurred in one situation but will in another with similar facts. For example, take the case above but change the weather. The bargeman would likely need to be onboard much longer during a storm but not as long when the weather is good.
Additional Notes
The calculus of negligence. This is a way to conceptualize elements of negligence. Here are the fators
- P = the probability of a damage-causing event
- L = the loss that can be anticipated to result if event occurs
- B = the burden, the cost of taking precautions that are needed to prevent harm.
So, if B is less than the probability of damage times the loss (B < P * L), the person could be found liable. If you are able to take steps that reduce the probability of damage or loss, then you need to take those steps. However, if the burden of reducing the probability of damage and loss is higher, we don’t want to hold a person liable because that would be wasteful.
So, what’s the big takeaway? The more likely a damage can occur, the less we need to worry about the loss. Additionally, even if the probability is low but the loss is high, we can find negligence (nuclear power plant).
In other words, we are conducting a risk-benefit analysis.
Restatement (Third) of Torts § 3. Negligence
“A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that a person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.”
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
