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Negligence

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Negligent Torts: Elements

There are four basic elements of a tort:

1) Duty

2) Breach

3) Causation

4) Damages

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Negligent Torts: Duty

Everyone has a duty to exercise due care all of the time. What is due care?

Due care is the amount of care that a reasonable person would exercise under the circumstances. What is a reasonable person?

A reasonable person is not any real person or even the average person, but an imaginary prudent person who takes the precautions necessary to avoid harming another person or their property.

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Negligent Torts: Duty

Can you think of examples of due care that each of the following people must exercise?:
A lifeguard at a municipal pool.
A lumberjack felling a tree.
An owner of an aggressive dog.
A high school football coach.

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Negligent Torts: Breach

Breach is the simplest of the four elements.
Once you determine the standard of care, you ask, did the defendant follow that standard of care?
For example, if the standard of care requires the owner of an aggressive dog to keep the dog on a leash and the owner does not do so s/he has breached the duty of care.

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Negligent Torts: Causation

There are two types of causation:

Causation in fact; and
Proximate cause

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Negligent Torts: Causation

Causation in fact, also known as “but-for” causation, is pretty simple.

The question is, but for the defendant’s actions would the injury have occurred?

Example: A hits B in the shin with a golf club. B’s shin would not have been injured if A had not him in the shin with a golf club.

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Proximate Cause

Proximate cause is a little more difficult.

Ultimately, it is more of a policy question than a legal question. The issue is where the law wants to cut off liability for a negligent actor.

Several theories exist regarding proximate cause:

Forseeability
Direct Causation

It would be good to mention an actual case where it was held that there was no proximate cause. One good case involves a flaming barge floating down a river that set fire to a house on the riverside and due to a strong wind thirty neighboring houses caught fire. The court held the barge operator liable for the first house, but not the other 29. One of the courts rationales was to promote a social policy that encouraged purchasing homeowner’s insurance.

The theories, on a basic level, are: (1) whether the tortfeasor could have foreseen the consequences of his or her actions; if not no proximate cause; (2) whether the tortfeasor’s actions were the direct cause of the consequences; if there was an intervening cause such as a lightning strike then no proximate cause; and (3) similar to forseeability, whether the harm was within the range of harms that could be expected from the tortfeasor’s actions.

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Negligent Torts: Causation: Hypo

This is Ken Griffey, Jr.

Ken Griffey, Jr. likes to practice his swing in his living room.

Unfortunately, this sometimes leads to disaster…

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Negligent Torts: Causation: Hypo 1

One day, while practicing his swing in his living room, Ken loses his grip on the bat. The bat flies into the sitting room and hits his wife’s friend in the head, causing minor injuries.

Q1: Is there causation in fact?

Q2: In there proximate causation?

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Negligent Torts: Causation: Hypo 2

Ken did not learn his lesson when he injured his wife’s friend. Once again, during a practice session, Ken loses his grip. This time the bat flies through a window and hits the ladder his roofer is using to climb onto his roof. The roofer falls and breaks both his arms.

Q1: Is there causation in fact?

Q2: In there proximate causation?

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Negligent Torts: Causation: Hypo 3

Ken, Ken, Ken. He keeps practicing, and keeps losing his grip. This time the bat flies into his neighbor’s yard. The bat hits his neighbor in the head just as he is squirting lighter fluid onto his grill. He squirts too much, which causes an explosion. In addition to his head injuries, he suffers burns from the explosion and there is some fire damage to his house.

Q1: Is there causation in fact for each injury?

Q2: In there proximate causation?

Q3: What if the fire had burned down the neighbor’s house? Several neighbors’ houses?

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Negligent Torts: Causation: Hypo 4

For some unknown reason, Ken is still practicing his swing in his house and he has a new neighbor, Eric, that loves to BBQ. It’s a perfect storm. And sure enough, Ken launches his bat through his window into his neighbor’s yard. The bat hits the BBQing neighbor, setting off another BBQ explosion. This time it kills the neighbor, and the neighbor’s wife is severely injured in the ensuing fire. As she is being wheeled to the ambulance she is struck by lightning.

Q1: Is there causation in fact for each injury?

Q2: Is there proximate cause for each injury?

Q3: Could Jane, another neighbor, sue Ken because she can no longer sell the new gas grill she handmade for Eric to Eric because Eric is dead?

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Negligent Torts: Damages

The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount.

The real difficulty comes in calculating damages. For example, it is pretty easy to figure out how much a totaled car is worth, but it’s not so easy to figure out how much eyesight is worth.

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Negligent Torts: Damages: Hypo

Betty and Derek are walking to school. Steven is driving down the street talking to his friends in the backseat. One of Steven’s friends screams “Look out!” Steven reacts by turning the wheel of his car, which jumps the curb and pins Betty’s arm to the wall crushing it. What remains of Betty’s arm needs to be amputated.

Q1: How much is Betty’s arm worth?

Q2: Does the answer change if Betty was a concert pianist?

Q3: What if Betty simply wanted to be a concert pianist, but wasn’t one yet?