CHAPTER 19CHAPTER 19

NegligenceNegligence

CIVIL ACTIONSCIVIL ACTIONSWhat is a civil action?What is a civil action?

Can you think of any examples?Can you think of any examples?

Definition of a civil action: a noncriminal Definition of a civil action: a noncriminal lawsuit, brought to enforce a right or lawsuit, brought to enforce a right or redress a wrongredress 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 ARE CIVIL ACTIONS ARE DIFFERENT DIFFERENT 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 TODAY: NEGLIGENCEFOCUS TODAY: NEGLIGENCE

Negligence is a type of tortNegligence is a type of tort

So what is a tort?So what is a tort?

A breach of some obligation causing A breach of some obligation causing harm or injuryharm or injury

A civil wrong such as negligence or A civil wrong such as negligence or libellibel

NEGLIGENCE DEFINEDNEGLIGENCE DEFINED

The failure to exercise a reasonable amount of care in either doing or not The failure to exercise a reasonable amount of care in either doing or not doing something, resulting in harm or injurydoing something, resulting in harm or injury

IMPORTANT……the defendant IMPORTANT……the defendant does not does not intendintend for the bad consequences to result for the bad consequences to result

HOW TO PROVE HOW TO PROVE NEGLIGENCENEGLIGENCE

DUTYDUTYDefined: Defined: legal obligationlegal obligation that is that is owed or due to anotherowed or due to another

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

DUTY OF CAREDUTY 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?

DUTY OF CARE EXAMPLEDUTY 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 WHO IS THE REASONABLE PERSON?PERSON?

Imaginary creature: Imaginary creature: – The reasonable person of ordinary prudence of carefulnes The reasonable person of ordinary prudence of carefulnes

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

CIRCUMSTANCES MATTERCIRCUMSTANCES MATTERCircumstances matter when evaluating a defendant’s actions and the law typically Circumstances matter when evaluating a defendant’s actions and the law typically says that a says that a defendant’s physical characteristicsdefendant’s physical characteristics are part of the circumstances are part of the circumstances

What characteristics of the defendant What characteristics of the defendant become “a part of” the reasonable person?become “a part of” the reasonable person?– Physical disabilitiesPhysical disabilities– If defendant is a child, the child’s age (unless If defendant is a child, the child’s age (unless

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

BREACH OF DUTYBREACH OF DUTYDefined:Defined:– Duty was violated/breached by the defendant’s conductDuty was violated/breached by the defendant’s conduct

What do you think constitutes a breach of What do you think constitutes a breach of duty?duty?

Once the duty is established, it is a simple Once the duty is established, it is a simple matter to determine whether the matter to determine whether the defendant’s actions met this defendant’s actions met this standard of standard of carecare or not or not

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:

1.1. cause in fact -- the cause w/o which the event cause in fact -- the cause w/o which the event could not have occurredcould not have occurred

2.2. proximate cause – must be a close connection b/t wrongful act & harm caused – harm must have been foreseeableproximate cause – must be a close connection b/t wrongful act & harm caused – harm must have been foreseeable

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

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?

DAMAGESDAMAGES

Plaintiff to be restored to pre-injury condition – as Plaintiff to be restored to pre-injury condition – as much as $$ canmuch as $$ can

WHAT CAN PLAINTIFFS WHAT CAN PLAINTIFFS RECOVER?RECOVER?

What do you think a plaintiff could recover if he or she proves the defendant What do you think a plaintiff could recover if he or she proves the defendant acted negligently and caused his or her harm?acted negligently and caused his or her harm?

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

(e.g. loss of a leg)(e.g. loss of a leg)

Economic loss Economic loss – out-of-pocket costs resulting from the – out-of-pocket costs resulting from the injury (e.g. medical bills, lost wages, reduced earnings injury (e.g. medical bills, lost wages, reduced earnings capacity, property damage)capacity, property damage)

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

***There are others, but these are the main ***There are others, but these are the main categoriescategories

DEFENSESDEFENSESAs 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?1.1. Contributory negligence defense (train & ice)Contributory negligence defense (train & ice)

2.2. Comparative damages (divide loss per % at fault)Comparative damages (divide loss per % at fault)

3.3. Assumption of RiskAssumption of Risk- Hockey fanHockey fan- Swim at own riskSwim at own risk- Using a knifeUsing a knife

WHAT IS A COUNTERCLAIMWHAT IS A COUNTERCLAIM

A claim made by the A claim made by the defendantdefendant against the plaintiff against the plaintiff

SUMMARYSUMMARYThe information covered today is just the tip of the icebergThe information covered today is just the tip of the iceberg

There is much more to learn -- There is much more to learn -- – More defensesMore defenses– How to prove the monetary value of a claim to the juryHow to prove the monetary value of a claim to the jury– Multiple causes of an injuryMultiple causes of an injury– Complex scenarios involving multiple plaintiffs and Complex scenarios involving multiple plaintiffs and

multiple defendantsmultiple defendants

This chapter provides a good foundation so that This chapter provides a good foundation so that you can evaluate your conduct in society and the you can evaluate your conduct in society and the conduct of othersconduct of others