Tort LawTort Law

NegligenceNegligence

Civil ActionsCivil ActionsWhat is a civil action?What is a civil action?

Definition of a civil action: “A Definition of a civil action: “A noncriminal lawsuit, brought to enforce noncriminal lawsuit, brought to enforce a right or redress a wrong”a right or redress a wrong”

Compare to the definition for a criminal Compare to the definition for a criminal action: “An action action: “An action instituted by the instituted by the governmentgovernment to punish offenses to punish offenses against the against the publicpublic””

Civil Actions Review Civil Actions Review Criminal ActionsCriminal Actions– Brought by the governmentBrought by the government– Government is known as the prosecutionGovernment is known as the prosecution– Prosecution has the burden of proof – Prosecution has the burden of proof – beyond a reasonable doubtbeyond a reasonable doubt– Defendant loses if found guiltyDefendant loses if found guilty– Usual penalty is a prison sentenceUsual penalty is a prison sentence

Civil ActionsCivil Actions– Brought by private citizensBrought by private citizens– Person bringing action is Person bringing action is

known as the plaintiffknown as the plaintiff– Plaintiff has the burden of Plaintiff has the burden of

proof – proof – preponderance of preponderance of the evidencethe evidence

– Defendant loses if found Defendant loses if found liableliable

– Usual penalty is money Usual penalty is money damagesdamages

Focus for Today: NegligenceFocus for Today: NegligenceNegligence is a type of tortNegligence is a type of tort

Tort:Tort:“A breach of some obligation, “A breach of some obligation, causing harm or injury to someone”causing harm or injury to someone”

Negligence: “Negligence: “The failure to exercise a The failure to exercise a reasonable amount of care in either reasonable amount of care in either doing or not doing something, doing or not doing something, resulting in harm or injury to resulting in harm or injury to someonsomeone”e”

Negligence DefinedNegligence Defined

Important characteristic – the defendant Important characteristic – the defendant does not intenddoes not intend for the bad consequences for the bad consequences to result to result

How to Prove NegligenceHow to Prove NegligenceThe plaintiff needs to prove four The plaintiff needs to prove four elementselements by a preponderance of the evidence by a preponderance of the evidence– DutyDuty– Breach of DutyBreach of Duty– Causation (two parts)Causation (two parts)– DamagesDamages

DutyDutyDefined: “A Defined: “A legal obligationlegal obligation that is that is owed or due to anotherowed or due to another and that needs to and that needs to be satisfied; an obligation for which somebody else has a corresponding right”be satisfied; an obligation for which somebody else has a corresponding right”

Example: If you drive a car, you have a Example: If you drive a car, you have a duty to obey the rules of the roadduty to obey the rules of the road

The Duty of CareThe Duty of CareGenerally speaking, a person owes a “Generally speaking, a person owes a “duty of careduty of care” to those around him or ” to those around him or her (i.e. a duty to act reasonably)her (i.e. a duty to act reasonably)

How is this duty of care determined?How is this duty of care determined?– By an By an objective standardobjective standard

When evaluating a person’s conduct, tort When evaluating a person’s conduct, tort law asks – would a law asks – would a reasonable person of reasonable person of ordinary prudenceordinary prudence in the defendant’s in the defendant’s position act as the defendant did?position act as the defendant did?

The Duty of Care: ExampleThe Duty of Care: ExampleWould a reasonable person drive down the street with a paper grocery bag Would a reasonable person drive down the street with a paper grocery bag over her head?over her head?

The reasonable person would not do thisThe reasonable person would not do this

Thus, part of the duty of care when driving Thus, part of the duty of care when driving is to not obstruct your visionis to not obstruct your vision

Who is the Reasonable Person?Who is the Reasonable Person?The reasonable person is a The reasonable person is a legal fictionlegal fiction

Typically, the jury is asked whether a Typically, the jury is asked whether a reasonable reasonable personperson of of ordinary prudenceordinary prudence in the in the defendant’s defendant’s positionposition would act as the defendant acted would act as the defendant acted

The reasonable person The reasonable person considers: how considers: how likelylikely a certain a certain harm is to occur, how harm is to occur, how seriousserious the harm would be if it did the harm would be if it did occur, and the occur, and the burdenburden involved in avoiding the harminvolved in avoiding the harm

Circumstances MatterCircumstances Matter

Characteristics considered:Characteristics considered:– Physical disabilitiesPhysical disabilities– If defendant is a child, If defendant is a child, the child’s agethe child’s age (unless (unless

doing an “adult activity” such as driving a car)doing an “adult activity” such as driving a car)– Defendant acted during Defendant acted during an emergencyan emergency

Not consideredNot considered– Mental characteristics Mental characteristics (e.g. if defendant is of (e.g. if defendant is of

below average intelligence, he can’t defend his below average intelligence, he can’t defend his actions based on this)actions based on this)

– IntoxicationIntoxication

Breach of DutyBreach of DutyDefined: “Defined: “The violation of a law, duty or The violation of a law, duty or other form of obligation, either by other form of obligation, either by engaging or failing to actengaging or failing to act””

Problem #1: Duty and BreachProblem #1: Duty and BreachItchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot. He Itchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot. He stops at the intersection, looks to the left and to the right and then crosses the streetstops at the intersection, looks to the left and to the right and then crosses the street

How would a “reasonable person” act?How would a “reasonable person” act?

Did Itchy breach the standard of care?Did Itchy breach the standard of care?

Problem #2: Duty and BreachProblem #2: Duty and BreachScratchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot at night. He is wearing black Scratchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot at night. He is wearing black pants, a black sweatshirt, black shoes, black gloves and a black ski mask. Scratchy puts his iPod headphones on and pants, a black sweatshirt, black shoes, black gloves and a black ski mask. Scratchy puts his iPod headphones on and begins blasting music at full volume. Without looking, Scratchy crosses the streetbegins blasting music at full volume. Without looking, Scratchy crosses the street

How would a “reasonable person” act?How would a “reasonable person” act?

Did Scratchy breach the standard of care?Did Scratchy breach the standard of care?

CausationCausationThere are two aspects of causation that must be considered: There are two aspects of causation that must be considered: cause in factcause in fact and and proximate causeproximate cause

Cause in fact: “The harm would not Cause in fact: “The harm would not have occurred without the wrongful act”have occurred without the wrongful act”

Proximate cause: “Injury a person Proximate cause: “Injury a person could reasonably predictcould reasonably predict– Also known as Also known as foreseeable causeforeseeable cause

Cause in Fact: The “But For” TestCause in Fact: The “But For” TestHow does the law determine what is a How does the law determine what is a cause in factcause in fact??

The “but for” test: If the defendant had not The “but for” test: If the defendant had not acted negligently (by breaching the acted negligently (by breaching the standard of care), the plaintiff would not standard of care), the plaintiff would not have been injuredhave been injured

Proximate Cause: ForeseeabilityProximate Cause: ForeseeabilityHow does the law determine what is a How does the law determine what is a proximate causeproximate cause??

Foreseeability: Most courts say that a Foreseeability: Most courts say that a defendant is liable only for consequences defendant is liable only for consequences of his negligence that were of his negligence that were reasonably reasonably foreseeableforeseeable when he acted when he acted– Seeks to limit the defendant’s liability to those Seeks to limit the defendant’s liability to those

results that are of the same general sort that results that are of the same general sort that made the conduct negligent in the first placemade the conduct negligent in the first place

Problem #3: CausationProblem #3: CausationMr. Burns races down the street in his car with a paper grocery bag over his Mr. Burns races down the street in his car with a paper grocery bag over his head. Hans Moleman begins to cross the street and is hit by Mr. Burns. head. Hans Moleman begins to cross the street and is hit by Mr. Burns.

Was Mr. Burns’ behavior the cause in fact of Was Mr. Burns’ behavior the cause in fact of Hans’ injuries?Hans’ injuries?

Was it the proximate cause of Hans’ injuries?Was it the proximate cause of Hans’ injuries?

Problem #4: CausationProblem #4: CausationCaptain McAllister’s boat spills oil into Springfield Harbor. Some of the oil sticks to docks owned by Fat Tony. One Captain McAllister’s boat spills oil into Springfield Harbor. Some of the oil sticks to docks owned by Fat Tony. One of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire dock dock

Was Capt. McAllister’s spilled oil a cause in fact Was Capt. McAllister’s spilled oil a cause in fact of the dock fire?of the dock fire?

Was it the proximate cause of the dock fire?Was it the proximate cause of the dock fire?

What Can Plaintiffs Recover?What Can Plaintiffs Recover?

Categories:Categories:– Direct loss – value of the loss of certain bodily Direct loss – value of the loss of certain bodily

functions (e.g. loss of a leg)functions (e.g. loss of a leg)– Economic loss – out-of-pocket costs resulting Economic loss – out-of-pocket costs resulting

from the injury (e.g. medical bills, lost wages, from the injury (e.g. medical bills, lost wages, reduced earnings capacity, property damage)reduced earnings capacity, property damage)

– Pain and suffering – value of the mental Pain and suffering – value of the mental anguish plaintiff has suffered and will continue anguish plaintiff has suffered and will continue to sufferto suffer

Defenses to Negligence SuitsDefenses to Negligence SuitsAs you know, it is rare that an accident is caused solely because of one As you know, it is rare that an accident is caused solely because of one person’s actionsperson’s actions

If the plaintiff is partly at fault for his or her If the plaintiff is partly at fault for his or her injuries, what can the defendant do to reduce his injuries, what can the defendant do to reduce his or her liability?or her liability?– Contributory negligence defense: If the plaintiff’s own Contributory negligence defense: If the plaintiff’s own

negligence contributed to the harm suffered, the negligence contributed to the harm suffered, the plaintiff cannot collect plaintiff cannot collect anythinganything from the defendant from the defendant

This defense is only used in a few states and is This defense is only used in a few states and is not the law in not the law in WashingtonWashington

– Comparative negligence defense: Plaintiff’s recovery Comparative negligence defense: Plaintiff’s recovery from the defendant is reduced by the percentage that from the defendant is reduced by the percentage that the plaintiff’s own negligence contributed to the injurythe plaintiff’s own negligence contributed to the injury

Comparative Negligence in DEComparative Negligence in DEDelaware is known as a 51% comparative Delaware is known as a 51% comparative negligence jurisdictionnegligence jurisdiction

What does this mean?What does this mean?– Basically, even if the plaintiff was 50% responsible for Basically, even if the plaintiff was 50% responsible for

her own injuries, she may still recover 50% of her her own injuries, she may still recover 50% of her damages from the defendantdamages from the defendant

– Example: Scratchy sues Itchy for $100,000 for running Example: Scratchy sues Itchy for $100,000 for running him over as he crossed the street. The jury determines him over as he crossed the street. The jury determines that Scratchy was 30% responsible for his own injuries that Scratchy was 30% responsible for his own injuries because he was wearing all black and listening to loud because he was wearing all black and listening to loud music. Scratchy will recover $70,000 from Itchymusic. Scratchy will recover $70,000 from Itchy