1. Unit 4 Seminar
Negligence

2. Any questions about Unit 3?
Is there anything you would like to discuss regarding Unit 3? Great job on the Discussion Board!

3. Unit 4 requirements Read Chapter 2 of Torts and Personal Injury Law
Participate in the Discussion (2 Boards)
Attend the Seminar
Take a short Quiz

4. Negligence Negligence
The failure to exercise reasonable care to avoid injuring others or their property.
4 elements of negligence:
Duty
Breach
Causation
Damages.

5. Negligence Elements required to maintain a negligence action
How to prove negligence
Compare and contrast negligence and intentional torts

6. Elements of Negligence
Every single element must be present or else there is NO negligence
1. Duty of care
2. Breach of the duty by the tortfeasor (unreasonable conduct)
3. Causation of injury to the victim
4. Damages to the victim (actual harm).

7. Elements of Negligence
1. Duty of care
Generally, a duty is the obligation either to do or not to do something
In negligence, the duty of due reasonable care is the responsibility to act reasonably so as to avoid injuring others
Do not owe duty to everyone, just foreseeable plaintiffs
Was the harm to that person reasonably anticipated

8. Elements of Negligence
2. Breach of the duty by the tortfeasor (unreasonable conduct)
Reasonable conduct – what would the ordinary person do in that same situation
Judge or jury determines reasonableness

9. Elements of Negligence
1. Breach of the duty by the tortfeasor (unreasonable conduct)
Professional Community Standard of care
Reasonableness determined by the customs and practices of defendant’s professional community
Doctors, attorneys, plumbers, etc
Disabled standards
Reasonable blind person, reasonable deaf person
Special relationship
Employer/employee; teacher/student; host/guest, etc

10. Elements of Negligence
3. Causation of injury to the victim
The conduct must be the cause of the injury
Causation Theories
“cause-in-fact”
but for the tortfeasor’s, the victim would not have been harmed.
The tortfeasor’s behavior is usually the immediate, direct, and dominant cause of the victim’s injuries.
Substantial Factor Analysis
Tortfeasor liable when his actions were a substantial factor in causing the damage
Joint and Several Liability
Multiple tortfeasors are each held individually liable for the combined negligent behavior of all the tortfeasors

11. Elements of Negligence
3. Causation of injury to the victim
“proximate cause”
When the tortfeasor’s actions cause a foreseeable injury to the victim
Was the victim’s injury the reasonably foreseeable result of what the tortfeasor did?

12. Elements of Negligence
Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928).
Facts
Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train.
The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train.
The man dropped the package which exploded when it hit the tracks.
The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf.
Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the court’s judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed.

13. Elements of Negligence
Issues
How is the duty of due care that is owed determined?
To whom does a party owe the duty of due care?

14. Elements of Negligence
Holding and Rule (Cardozo – “Zone of Danger” rule)
A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances.
A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger.
The court held that the conduct of Long Island Railroad’s guard was wrongful in relation to the man carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the package contained fireworks which when dropped could harm a person as far from the zone of danger as Palsgraf.
To find negligence there must first be a finding that a duty was owed and breached, and that the injury could have been avoided if the defendant had been following that duty. The orbit of the danger or risk associated with a danger or risk is that which a reasonable person would foresee.
Even if the guard had intentionally taken the package and thrown it he would not have threatened Palsgraf’s safety from the appearances of the circumstances to a reasonable person. Long Island Railroad’s liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional

15. Elements of Negligence
3. Causation of injury to the victim
Taking the victim as you find him
Some people have different sensitivities and reactions
Some courts that hold that you take the victim as you find him and thus almost all physical reactions are reasonably foreseeable

16. Elements of Negligence
Colleen operates a laundromat. Geoffrey often washes and dries his clothes there. One day, while Geoffrey was loading his laundry into the washer, the machine unexpectedly began agitating and injured his arms and hands.
Did Colleen proximately cause Geoffrey’s injuries?

17. Elements of Negligence
Foreseeability of injury is the starting point. Was it reasonably foreseeable that the washer Geoffrey used would short-circuit and suddenly begin operating while Geoffrey was loading his clothes?
It is not uncommon for electrical, mechanical devices to jump to life by themselves unexpectedly. This often occurs when electrical wiring short-circuits after the wires’ insulation has frayed. Because people must insert their hands and arms inside the washing machine drum to load clothing, it is reasonably foreseeable that a shorted machine might start itself while a patron’s arms are inside.
Thus, Geoffrey’s injuries were reasonably foreseeable and Colleen proximately caused the harm suffered.

18. Elements of Negligence
Suppose, however, that Geoffrey’s arms and hands were not trapped inside the machine when it suddenly began agitating.
Suppose, instead, that the surprise simply frightened Geoffrey, who was unusually susceptible to sudden, loud noises and suffered a heart attack as a consequence of the shock.
Could Colleen have reasonably anticipated this tragedy?
Most courts would reverse the reasonable person standard (applying it to the plaintiff) and say that a reasonable person would not be so easily alarmed (to the point of heart failure) by an upstart washing machine.
However, a few courts would employ taking-the-victim analysis and say that even this remote and unexpected injury was foreseeable.

19. Elements of Negligence
4. Damages to the victim (actual harm)
Damages are the injury that the plaintiff suffered as a result of the defendant’s tortious conduct
In a negligence action, you must demonstrate calculable harm

20. Elements of Negligence
4. Damages to the victim (actual harm)
Compensatory damages – generally compensates for out-of-pocket loss
General damages
Compensatory damages that naturally flow from the conduct (like pain and suffering)
Special damages (consequential damages)
Compensatory damages specific to the plaintiff
Medical bills, etc
MUST be specifically plead (must address them specifically in the Complaint)

21. Elements of Negligence
4. Damages to the victim (actual harm)
Compensatory damages – generally compensates for out-of-pocket loss
Economic Damages – actual out-of-pocket loss
Non-economic damages – loss that cannot be easily quantified (mental anguish, etc)

22. Elements of Negligence
4. Damages to the victim (actual harm)
Nominal Damages
Small, token, symbolic damages awarded when no real damage was done but a right was nonetheless violated
Usually in intentional tort actions
Not allowed in negligence actions
Punitive Damages (exemplary damages)
Extra damages awarded because conduct was so egregious
Meant to punish
Very rarely allowed in negligence actions
Only Gross Negligence
More common in intentional torts

23. Proving Negligence Burden of Proof
The plaintiff must prove defendant was negligent.
Plaintiff to prove by a preponderance of the evidence that all negligence elements existed (duty, breach, causation, and injury).
The evidence must establish that the defendant’s actions were negligent and caused the plaintiff ’s injuries
Preponderance of the evidence
The quality of evidence weighs in favor of the plaintiff

24. Proving Negligence
Once plaintiff makes his prima facie case then defendant can rebut with evidence of his own
Prima facie case – plaintiff has proved the elements by a preponderance of the evidence

25. Proving Negligence Res Ipsa Loquitur “The thing speaks for itself”
Used when plaintiff is unable to present proof
Unconscious, not there, etc
Presumes negligence just because something happened
If patient is unconscious during surgery and did not see the surgeon leave a sponge in him, the fact that it is even in there is proof that there was negligence
Burden shift to defendant to disprove negligence

26. Proving Negligence Res Ipsa Loquitur Elements
1. The defendant (or his or her employee[s]) must have been in exclusive control of the object or action that produced the plaintiff ’s injury.
2. The plaintiff ’s injury must be of a type that ordinarily would not have happened unless negligence were involved.
3. The defendant must be in a better position to prove his or her lack of negligence than the plaintiff is to prove the defendant’s negligence.

27. Proving Negligence Res Ipsa Loquitur Elements
1. The defendant (or his or her employee[s]) must have been in exclusive control of the object or action that produced the plaintiff ’s injury.
2. The plaintiff ’s injury must be of a type that ordinarily would not have happened unless negligence were involved.
3. The defendant must be in a better position to prove his or her lack of negligence than the plaintiff is to prove the defendant’s negligence.

28. Violation of a Statute
In most states, violation of a statute is negligence per se
Just proving the violation would prove negligence
Care and reasonableness unnecessary

29. Different from Intentional Torts
Intentional torts require intent
Negligence does not require intent, just a breach of duty of care
Intentional torts can result in nominal damages
Negligence cannot – must prove damages
Intentional torts are more likely to result in punitive damages
Only with Gross negligence
Intentional torts are more likely to “take victims as you find them”
Rarer with pure negligence