Tort LawTort Law

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: “An action brought to enforce, redress, or protect a Definition of a civil action: “An action brought to enforce, redress, or protect a private or civil rightprivate or civil right; ; a a noncriminalnoncriminal litigation” litigation”

Compare to the definition for a criminal action: “An action Compare to the definition for a criminal action: “An action instituted by the governmentinstituted by the government to punish to punish offenses offenses against the publicagainst the public””

Civil Actions are Different Civil Actions are 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 known as the plaintiffPerson bringing action is known as the plaintiff– Plaintiff has the burden of proof – Plaintiff has the burden of proof – preponderance of the evidencepreponderance of the evidence– Defendant loses if found liableDefendant loses if found liable– Usual penalty is money damagesUsual penalty is money damages

Focus for Today: NegligenceFocus for Today: NegligenceNegligence is a type of tortNegligence is a type of tort

So what is a tort? “A So what is a tort? “A civil wrongcivil wrong . . . for which a remedy may be obtained, usually in the form of . . . for which a remedy may be obtained, usually in the form of damagesdamages; ; a breach of a duty that the law imposes on persons who stand in a particular relation to one another”a breach of a duty that the law imposes on persons who stand in a particular relation to one another”

Negligence DefinedNegligence DefinedDefined: “The failure to exercise the standard of care that a Defined: “The failure to exercise the standard of care that a reasonably prudent personreasonably prudent person would have exercised in a would have exercised in a similar situationsimilar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk ; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights”of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights”

Important characteristic of negligence – the defendant Important characteristic of negligence – the defendant does not intenddoes not intend for for the bad consequences to result the bad consequences to result

How to Prove NegligenceHow to Prove NegligenceThe plaintiff needs to prove four The plaintiff needs to prove four elementselements by a preponderance of the evidence by a preponderance of the evidence– DutyDuty– Breach of DutyBreach of Duty– Causation (two parts)Causation (two parts)– DamagesDamages

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

The Duty of CareThe Duty 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 law asks – would a When evaluating a person’s conduct, tort law asks – would a reasonable person of ordinary reasonable person of ordinary prudenceprudence in the defendant’s position act as the defendant did? in the defendant’s position act as the defendant did?

The Duty of Care: ExampleThe Duty 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 is to not obstruct your visionThus, part of the duty of care when driving is to not obstruct your vision

Who is the Reasonable Person?Who is the Reasonable Person?The reasonable person is a The reasonable person is a legal fictionlegal fiction

Typically, the jury is asked whether a Typically, the jury is asked whether a reasonable personreasonable person of of ordinary prudenceordinary prudence in the in the defendant’s positiondefendant’s position would act as the defendant acted would act as the defendant acted

The reasonable person considers: how The reasonable person considers: how likelylikely a certain harm is to occur, how a certain harm is to occur, how seriousserious the harm would be if it did occur, and the the harm would be if it did occur, and the burdenburden involved in avoiding the harm involved in avoiding the harm

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 become “a part of” the reasonable person?What characteristics of the defendant become “a part of” the reasonable person?– Physical disabilitiesPhysical disabilities– If defendant is a child, the child’s age (unless doing an “adult activity” such as driving a car)If defendant is a child, the child’s age (unless doing an “adult activity” such as driving a car)– Defendant acted during an emergencyDefendant acted during an emergency

Circumstances Matter (cont’d)Circumstances Matter (cont’d)What characteristics of the defendant What characteristics of the defendant do notdo not become “a part of” the reasonable person? become “a part of” the reasonable person?– Mental characteristics (e.g. if defendant is of below average intelligence, he can’t defend his actions based on this)Mental characteristics (e.g. if defendant is of below average intelligence, he can’t defend his actions based on this)– IntoxicationIntoxication

These lists are not comprehensive, but they cover some of the common categoriesThese lists are not comprehensive, but they cover some of the common categories

Breach of DutyBreach of DutyDefined: “The Defined: “The violationviolation of a of a legal or moral obligationlegal or moral obligation; the failure to act as the ; the failure to act as the law obligates one to act”law obligates one to act”

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

Once the duty is established, it is a simple matter to determine whether the Once the duty is established, it is a simple matter to determine whether the defendant’s actions met this defendant’s actions met this standard of carestandard of care 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: cause in factcause in fact and and proximate causeproximate cause

Cause in fact defined: “The cause without which the event Cause in fact defined: “The cause without which the event could not have could not have occurredoccurred””

Proximate cause defined: “A cause that is Proximate cause defined: “A cause that is legally sufficientlegally sufficient to result in liability; an act or omission that is considered in 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”law to result in a consequence, so that liability can be imposed on the actor”– Also known as Also known as legal causelegal cause

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 acted negligently (by breaching the The “but for” test: If the defendant had not acted negligently (by breaching the standard of care), the plaintiff would not have been injuredstandard of care), the plaintiff would not have been injured

Proximate Cause: ForeseeabilityProximate Cause: ForeseeabilityHow does the law determine what is a How does the law determine what is a proximate causeproximate cause??

Foreseeability: Most courts say that a defendant is liable only for consequences of his negligence that were Foreseeability: Most courts say that a defendant is liable only for consequences of his negligence that were reasonably reasonably foreseeableforeseeable when he acted 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 placeSeeks 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

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 Hans’ injuries?Was Mr. Burns’ behavior the cause in fact of 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. 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 One of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire dock entire dock

Was Capt. McAllister’s spilled oil a cause in fact of the dock fire?Was Capt. McAllister’s spilled oil a cause in fact of the dock fire?

Was it the proximate cause of the dock fire?Was it the proximate cause of the dock fire?

DamagesDamagesThere are two aspects of damages that must be considered: There are two aspects of damages that must be considered: actual, physical actual, physical harmharm and the and the monetary valuesmonetary values ascribed to those harms ascribed to those harms

The first aspect is straightforward – show that you suffered The first aspect is straightforward – show that you suffered actual injuryactual injury (e.g. broken arm, (e.g. broken arm, burned down house, etc.)burned down house, etc.)

Once you prove the actual, physical harm, the second aspect of damages comes into play: “Once you prove the actual, physical harm, the second aspect of damages comes into play: “MoneyMoney claimed by, or ordered to be paid to, a person claimed by, or ordered to be paid to, a person as compensation for loss or injury”as compensation for loss or injury”– The law tries to restore the plaintiff to her pre-injury condition using money The law tries to restore the plaintiff to her pre-injury condition using money

What Can Plaintiffs Recover?What Can Plaintiffs 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 – value of the loss of certain bodily functions (e.g. loss of a leg)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)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 sufferPain and suffering – value of the mental anguish plaintiff has suffered and will continue to suffer– There are others, but these are the main categoriesThere are others, but these are the main categories

Defenses to Negligence SuitsDefenses to Negligence SuitsAs 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 injuries, what can the defendant do to reduce his or her liability?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 Contributory negligence defense: If the plaintiff’s own negligence contributed to the harm suffered, the plaintiff cannot collect anythinganything from the defendant from the defendant

This defense is only used in a few states and is This defense is only used in a few states and is not the law in Washingtonnot the law in Washington

– Comparative negligence defense: Plaintiff’s recovery from the defendant is reduced by the percentage that the plaintiff’s own negligence contributed to the injuryComparative negligence defense: Plaintiff’s recovery from the defendant is reduced by the percentage that the plaintiff’s own negligence contributed to the injury

Comparative Negligence in WAComparative Negligence in WAWashington is known as a pure comparative negligence jurisdictionWashington is known as a pure comparative negligence jurisdiction

What does this mean?What does this mean?– Basically, even if the plaintiff was 90% responsible for her own injuries, she may still recover 10% of her damages from the defendantBasically, even if the plaintiff was 90% responsible for her own injuries, she may still recover 10% of her damages from the defendant

– Example: Scratchy sues Itchy for $100,000 for running him over as he crossed the street. The jury determines that Scratchy was 30% responsible for his own injuries because he was wearing all black and listening Example: Scratchy sues Itchy for $100,000 for running him over as he crossed the street. The jury determines that Scratchy was 30% responsible for his own injuries because he was wearing all black and listening to loud music. Scratchy will recover $70,000 from Itchyto loud music. Scratchy will recover $70,000 from Itchy

Some states (not WA) would bar Scratchy from recovering if he was more Some states (not WA) would bar Scratchy from recovering if he was more than 50% responsible than 50% responsible

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 multiple defendantsComplex scenarios involving multiple plaintiffs and multiple defendants

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