Chapter 20--Negligence

Objectives Understand the four elements of the tort of

negligence Understand the reasonable person standard Understand how foreseeability (ability to

anticipate the outcome of an action) is critical in negligence cases

Also, how foreseeability is the key difference between proximate cause and cause in fact

Be able to apply the concepts of comparative and contributory negligence

Learn about other potential defenses to negligence cases

Four Elements

Duty—defendant owes a duty of care to the plaintiff (judge decides)

Example of no duty owed? Breach of duty—defendant’s

conduct breached or violated that duty (jury decides)

Causation—the defendant’s conduct legally caused the plaintiff’s injuries/harm

Two types of causation—more on this later

Damages—plaintiff suffered actual injuries or losses

Breach of Duty—The “Reasonable Person” Standard

Negligence cases are decided based on whether a person’s conduct conforms to that of “the reasonable person of ordinary prudence or carefulness”

Professionals and minors—different standards

Reasonableness—must evaluate: Likelihood of harm Seriousness of harm Burden/cost of avoiding harm Criminal acts may constitute breach of

duty as a matter of law (negligence per se)

Causation

Two concepts: Cause in fact—harm would not have

occurred without the wrongful act Proximate cause—the harm was

reasonably foreseeable as a consequence of the wrongful act

Proximate cause is more difficult Great Chicago Fire (p. 256) Palsgraf v. Long Island Railroad The Butterfly Effect

Damages Goal—restore the plaintiff to pre-injury

condition (to extent possible) Money is the primary remedy Examples of damages: Hospital and medical bills Lost wages (past) Lost future earnings Property damage Pain and suffering Emotional distress Mental/physical disabilities Loss of consortium

Defenses Contributory negligence—complete

bar to recovery Can result in harsh result, where the

defendant is mostly responsible, but avoids liability

Comparative negligence (responsibility)

Plaintiff’s recovery reduced by own percentage of responsibility

Most states bar recovery if plaintiff >50% responsible