1. Negligence
Mrs. Hill

2. Civil Actions What is a civil action?
Definition of a civil action: “An action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation”
Compare to the definition for a criminal action: “An action instituted by the government to punish offenses against the public”

3. Civil Actions are Different
Criminal Actions
Brought by the government
Government is known as the prosecution
Prosecution has the burden of proof – beyond a reasonable doubt
Defendant loses if found guilty
Usual penalty is a prison sentence
Civil Actions
Brought by private citizens
Person bringing action is known as the plaintiff
Plaintiff has the burden of proof – preponderance of the evidence
Defendant loses if found liable
Usual penalty is money damages

4. How to Prove Negligence
The plaintiff needs to prove four elements by a preponderance of the evidence
Duty
Breach of Duty
Causation (two parts)
Damages

5. Duty
Defined: “A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right”
Example: If you drive a car, you have a duty to obey the rules of the road

6. The Duty of Care By an objective standard
Generally speaking, a person owes a “duty of care” to those around him or her (i.e. a duty to act reasonably)
How is this duty of care determined?
By an objective standard
When evaluating a person’s conduct, tort law asks – would a reasonable person of ordinary prudence in the defendant’s position act as the defendant did?

7. The Duty of Care: Example
Would a reasonable person drive down the street with a paper grocery bag over her head?
The reasonable person would not do this
Thus, part of the duty of care when driving is to not obstruct your vision

8. Breach of Duty
Defined: “The violation of a legal or moral obligation; the failure to act as the law obligates one to act”
What do you think constitutes a breach of duty?
Once the duty is established, it is a simple matter to determine whether the defendant’s actions met this standard of care or not

9. Causation Also known as legal cause
There are two aspects of causation that must be considered: cause in fact and proximate cause
Cause in fact defined: “The cause without which the event could not have occurred”
Proximate cause defined: “A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor”
Could it have been predicted that the action would have caused the damage that it did?
Also known as legal cause

10. Cause in Fact: The “But For” Test
How does the law determine what is a cause in fact?
The “but for” test: If the defendant had not acted negligently (by breaching the standard of care), the plaintiff would not have been injured

11. Proximate Cause: Foreseeability
How does the law determine what is a proximate cause?
Foreseeability: Most courts say that a defendant is liable only for consequences of his negligence that were reasonably foreseeable when he acted
Seeks to limit the defendant’s liability to those results that are of the same general sort that made the conduct negligent in the first place
The Great Chicago Fire

12. Damages
There are two aspects of damages that must be considered: actual, physical harm and the monetary values ascribed to those harms
The first aspect is straightforward – show that you suffered actual injury (e.g. broken arm, burned down house, etc.)
Once you prove the actual, physical harm, the second aspect of damages comes into play: “Money claimed by, or ordered to be paid to, a person as compensation for loss or injury” The law tries to restore the plaintiff to his/her pre-injury condition using money

13. What Can Plaintiffs Recover?
What do you think a plaintiff could recover if he or she proves the defendant acted negligently and caused his or her harm?
Categories:
Direct loss – value of the loss of certain bodily functions (e.g. loss of a leg)
Economic loss – out-of-pocket costs resulting from the injury (e.g. medical bills, lost wages, reduced earnings capacity, property damage)
Pain and suffering – value of the mental anguish plaintiff has suffered and will continue to suffer
There are others, but these are the main categories

14. Defenses to Negligence Suits
As you know, it is rare that an accident is caused solely because of one person’s actions
If the plaintiff is partly at fault for his or her injuries, what can the defendant do to reduce his or her liability?
Contributory negligence defense: If the plaintiff’s own negligence contributed to the harm suffered, the plaintiff cannot collect anything from the defendant
Comparative negligence defense: Plaintiff’s recovery from the defendant is reduced by the percentage that the plaintiff’s own negligence contributed to the injury

15. Defenses to Negligent Suits
Counterclaim- comparative fault.
Assumption of risk- used when a person voluntarily encounters a known danger and decides to accept the risk of that danger.
- this defense is also used when a warning is
posted that gives notice of a certain danger.
Example: A pool posting a sign that says, “Swim at your own risk.”

16. Strict Liability and Torts and Public Policy
Mrs. Hill

17. What is strict liability?
Exception to the requirement of fault
Means the defendant is liable to the plaintiff regardless of fault.
This is true in some situations even if the defendant took all precautions necessary, liability is imposed without proof of fault

18. How do I prove it? Negligence Strict Liability Duty Breach Causation
damages
Causation
Damages
Must prove to the court that the harm caused is the type of unreasonably dangerous activity to which strict liability should be applied.

19. Public Policy
Public policy and common sense require people who conduct dangerous activities to accept responsibility for any harm they caused, even if they were NOT negligent.

20. Dangerous Activity
Applies to activities seen as unreasonably dangerous
Considered unreasonably dangerous when they involve a risk of harm that cannot be eliminated even by reasonable care.
Activities may be socially useful or necessary, but because of their potential for harm, those who engage in them are held to the strict liability standard.

21. Examples
Toxic torts
Harm resulting from the use of toxic and other hazardous chemicals.
Industrial companies disposing of their wastes in rivers and that resulting in illness for those exposed to such chemicals.

22. Animals
Law traditionally holds owners of untamed animals responsible for any harm caused by the animals.
In extreme situations, a pet owner might even be held criminally responsible for the harm caused by a pet if the owner knows that the pet is dangerous and cannot be controlled.

23. Defective Products
Product liability- the legal responsibility of manufacturers for injuries caused by defective products.
The CPSC protects the public by issuing and enforcing mandatory product standards or in some cases, banning consumer products.

24. Defenses for strict liability
You don’t have to prove fault. You have to prove causation and damages.
A defendant could try to show that there is no causation or that there are no damages.
Example- A person has a heat attack and dies instantly while driving a car with faulty brakes. That person’s family might argue that the car manufacturer is strictly liable. However, if the defect (the faulty brakes) did not cause the damage (the death), the manufacturer would not be liable.

25. Torts, Public Policy, Reform
Torts and Public Policy
Tort Reform
As a matter of public policy, the tort law system should serve to:
Compensate harmed persons in a prompt and efficient way
Fairly allocate benefits to victims and costs to wrongdoers
Deter conduct that is unreasonably risky and dangerous
A movement to change the process of settling tort claims.

26. Strategies to change process of settling torts
Reduce the amount of time a plaintiff has to file a lawsuit for damages after an injury.
- statute of limitations: requires that a tort
claim be filed within either two or three
years of when the injury is suffered.
Limit or “cap” the amount that can be rewarded for pain and suffering.

27. Frivolous lawsuits Cases without merit Example:
In1991, Richard Overton sued Anheuser-Busch for false and misleading advertising under Michigan State law.  The complaint specifically referenced ads involving, among other things, fantasies of beautiful women in tropical settings that came to life for two men driving a Bud Light truck.  In addition to two claims of false advertising, Mr. Overton included a third claim in his complaint in which he claimed to have suffered emotional distress, mental injury, and financial loss in excess of $10,000 due to the misleading Bud Light ads.  The court dismissed all claims.

28. Courtesy of Washington State Law materials