Negligence

Negligence - definition

Failure to apply reasonable care in order to avoid foreseeable injuries to others

The law requires that we act reasonably toward other people and their property

"The rule that you are to love your neighbour becomes in law, you must not injur your neighbour. You must take reasonable care to avoid acts or ommisions which you can reasonably foresee would be likely to injur your neighbour." (Donoghue v. Stevenson,1932)

The reasonable person

The standard that we must meet is that of the reasonable person in the same or similar circumstances

The judges invented the notion of the reasonable man – a meticulously careful person or a perfect person

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done." (Blyth v. Birmingham Water Works, 1856)

The Law of Torts

The Law of Torts (Tort Law) sets standards for our behaviour and provides remedies if we do not meet these standards

It imposes on each member of society the duty to take reasonable care to avoid causing harm to others

The Law of Negligence

It decides whether the tortfeasor was negligent in his or her behaviour

If the court finds the tortfeasor negligent, he or she may be ordered to compensate the injured party

The injured party (claimant) must show that the tortfeasor did not meet the standard of care owed to him or her and that the injury resulted from that failure

Failure to use ordinary care

Negligence is an allegation or accusation of failure to use ordinary care

Failure to use ordinary care can also occur by omission, or failing to do something that a reasonable person would have done

Negligence is therefore a judgment of both acts and omissions

Components of a negligence cause of action

When considering a nagligence cause of action, there are six primary elements to be considered:

1. Duty 2. Breach of duty 3. Causation 4. Damage 5. Remoteness 6. Defences

Duty

The duty element is the legal requirement that the person being sued for negligence must adhere to a standard of conduct in protecting others from unreasonable risk of harm

Types of duties: parental, personal, professional

Breach of duty

Would a reasonable person in a similar situation have done the same thing as the person being sued?

The objective (hypothetical) and subjective (actual) standard of breach of duty

Causation

Actual cause: was the person being sued the actual cause of injuries sustained by the plaintiff?

Proximate cause: were the injuries sustained foreseeable or too remotely connected to the incident?

Damage

Claimants must have suffered damage from the negligent act

Physical damage Economic damage or both

Remoteness

Only reasonably foreseeable damage may be recovered by an action in negligence

It must have been reasonably foreseeable that damage of the same kind as the claimant suffered would ensue from it (legal cause of the action)

Defences

The tortfeasor may have a complete or partial defence to the tort

A common complete defence is where the tortfeasor proves that the claimant consented either expressly or implicitly to the risk of damage, or where the tortfeasor proves that the claimant acted negligently

Damages

The court decides the amount of damages to be awarded

Special damages (precisely quantified) General damages (not quantified precisely: pain and

suffering, future losses…) Punitive damages (where the tortfeasor intentionally

committed the tort for economic gain) Nominal damages (negligible damage)

Case StudyLiebeck v.McDonald’s

Stella Liebeck (79) bought a cup of coffee for 49 cents at the drive-through window of a McDonald’s in Albuquerque, New Mexico

She placed the cup between her legs to remove the lid to add cream and sugar and spilled the coffee, burning herself

Injuries

Ms. Liebeck's injuries were severe. She suffered full thickness burns (third-degree burns) and scalding to her inner thighs, groin and buttocks. She was in the hospital for eight days and had to undergo extremely painful procedures to remove layers of dead skin, as well as several graft operations.

The coffee

The McDonald's coffee Ms. Liebeck purchased was served at a temperature of between 180 and 190 degrees Fahrenheit. For home use, coffee is generally brewed at 135 to 140 degrees. If spilled on skin, any beverage heated to between 180 and 190 degrees will cause third-degree burns in two to seven seconds.

The action

Ms. Liebeck's original intention was to obtain legal help in order to be reimbursed for her medical expenses, which were said to have totalled nearly $20,000. However, McDonald's refused to pay her medical bills. This led Ms. Liebeck to file a product-liability suit.

Allegation

Liebeck sued McDonald’s, alleging that the coffee was too hot

Decision

The jury awarded her $160,000 to compensate her for her injuries and $2.7 million to punish McDonald’s

Advocates of tort reform

They claim this is a clear case of lawsuit abuse: everyone knows that coffee is hot and if you spill it, you can burn yourself

No one is willing to accept the consequences of everyday accidents – judges and juries have allowed plaintiffs to pass their misfortune on to someone with a deep pocket

Defenders of tort law

They see Liebeck’s case as the evidence of how well the tort system works

McDonald’s had received over 700 complaints about the temperature of the coffee (20 degrees hotter than competitors)

Liebeck was in hospital for a week with third-degree burns requiring skin grafts

Jury’s reasoning in the case

$2,7 million was the amount that McDonald’s made from two days of coffee sales – the punitive damage award

Liebeck was partially responsible for her injuries because she was not careful, so it reduced the damages awarded to her accordingly

The judge’s decision

The trial judge further reduced the punitive damages to $480.000

The result

After this case, McDonald’s reduced the temperature of its coffee

A wrongdoer was forced to compensate an injured victim and to remedy its dangerous conduct

Vocabulary

Fill in the blanks with appropriate words from the lost below:

duty, damage, care, liability, conduct, breach, liable, intention Negligence which harms another unjustifiably is not only a tort in itself, it is also a

condition of _________________ for tort. From this point of view it is, like __________, a mental state. One may say that it is a failure to use proper _________ in one's conduct. Negligence will in general involve liability for ___________ caused by it; but before we can say that there has been negligence of which the law will take account, one must make sure that there is a legally recognized _________ to take care.

The House of Lords held in 1969 that a barrister or solicitor normally owes his client a duty of care, any ____________ of which will render him ______________ to his client, except where he is acting as an advocate, when he will not be liable for negligence in his ____________ of a case.

Negligence which harms another unjustifiably is not only a tort in itself, it is also a condition of liability for tort. From this point of view it is, like intention, a mental state. One may say that it is a failure to use proper care in one's conduct. Negligence will in general involve liability for damage caused by it; but before we can say that there has been negligence of which the law will take account, one must make sure that there is a legally recognized duty to take care.

The House of Lords held in 1969 that a barrister or solicitor normally owes his client a duty of care, any breach of which will render him liable to his client, except where he is acting as an advocate, when he will not be liable for negligence in his conduct of a case.