Unintentional Torts - Definitions

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2 Unintentional Torts - Definitions Negligence The failure to exercise the degree of care that a reasonable person would exercise that results in the proximate cause of actual harm to an innocent person. Strict Liability Responsibility to answer for harm that results from an ultra-hazardous activity. Breach of Duty The failure to use the degree of care that would have been used by a reasonable person. Proximate Cause The link between unreasonable conduct and an injury in a negligence suit. Contributory Negligence Behavior by the plaintiff that helps cause his or her injuries.

3 Unintentional Torts - Definitions Comparative Negligence The process by which the negligence of each party is compared and the amount of the plaintiff s recovery is reduced by the percent of his or her negligence. Assumption of Risk Defense in which the defendant shows that the plaintiff knew of the risk involved in an activity and still took the chance of being injured.

4 Negligence Negligence - The failure to exercise the degree of care that a reasonable person would exercise that results in the proximate cause of actual harm to an innocent person. Negligence is an accidental or unintentional tort and is the tort that occurs most often in society. Examples: automobile accident, someone tripping on a broken floorboard

5 Elements of Negligence To succeed in a tort suit for negligence, the plaintiff must prove all of the following elements: The defendant owed the plaintiff a duty of care (the defendant failed to act as a reasonable person would have acted) This failure to use the degree of care required under the circumstances is called a breach of duty. The breach of duty by the defendant was the proximate cause of the injury to the plaintiff. The plaintiff suffered some actual harm or injury.

6 Duty of Care The law of torts is grounded in the concept of rights. In general, a defendant owed the plaintiff a duty of reasonable care if the plaintiff would foreseeably be at risk of harm from the defendant s conduct A duty may arise if a special relationship existed between the parties Examples of a special relationship: doctor-patient, lawyer-client, accountant-client

7 Williams v. Cingular Wireless Facts & Procedural History: Plaintiff was injured by a driver using a cell phone provided by Cingular Plaintiff sued Cingular for negligence in providing the cell phone Trial court dismissed case; Plaintiff appealed Issue: Did Cingular owe a duty of care to the plaintiff? Without a duty, there can be no breach

8 Williams v. Cingular Wireless Law Applied to Facts: Defendant had no relationship to plaintiff so as to create a duty Little or no foreseeability that the sale of a cell phone would cause plaintiff s injury Imposing a duty on defendant would not be sound public policy Holding: Dismissal of claim against Cingular affirmed

9 Breach of Duty of Due Care If a duty existed, then the question is whether the defendant acted as a reasonable person of ordinary prudence would have acted under the same or similar circumstances Reasonable person standard The test focuses on defendant s behavior, not defendant s intent reckless behavior may be unreasonable

10 Scully v. Fitzgerald Facts & Procedural History: Plaintiff leased store property from defendant Debris in an adjacent apartment building owned by defendant caught fire and the fire damaged plaintiff s property Plaintiff sued defendant alleging that defendant failed to use reasonable care in maintaining the apartment building Issue: Did defendant landlord breach a duty of care to the plaintiff tenant?

11 Scully v. Fitzgerald Legal Reasoning: Landowner may be liable for fire if property kept in unsafe condition and owner did not take reasonable precautions to prevent harm Test: would reasonably prudent person recognize and foresee an unusual risk or likelihood of harm? Defendant s exposed collection of papers and refuse was flammable and potentially dangerous Holding: Trial court erred in denying jury the opportunity to decide if defendant breached a duty to plaintiff The Appellate Division reversed. Summary judgment should not have been entered in this case.

12 Causation and Injury Injuries may include bodily or emotional injury, and property or economic damage Causal link between the alleged misconduct and the injury requires: Actual cause: plaintiff would not have been hurt but for defendant s breach of duty (act or omission) Proximate cause: plaintiff s injury was foreseeable consequence of defendant s act or omission Interim Personnel of Central Virginia, Inc. v. Messer

13 Causation and Injury An event that occurs after initial breach of duty may worsen a plaintiff s injury Example: plaintiff injured in accident and while unconscious, a thief steals the plaintiff s wallet If latter event is foreseeable, defendant will be deemed liable If latter event not foreseeable, defendant will be absolved from liability Example: Stahlecker v. Ford Motor Co.

14 Causation and Injury An important doctrine concerning causation is res ipsa loquitur (the thing speaks for itself) Res ipsa applies when: (1) defendant has total control of the instrument of harm, (2) the harm would not occur in the absence of negligence, and (3) plaintiff was not responsible for his own injury Example: after abdominal surgery, patient complains of pain in abdomen and X-ray shows surgical clamp left in abdomen

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