Chapter 5

Torts and Strict Liability

Part II
Unintentional Torts
(Negligence)
Unintentional Torts (Negligence)

Under the doctrine of unintentional tort, commonly referred to as

negligence, a person is liable for harm that is the foreseeable
consequence of his or her actions. Negligence is defined as “ the
omission to do something which a reasonable man would do, or doing
something which a prudent and reasonable man would not do.”
To be successful in a negligence lawsuit, the plaintiff must
prove that:
(1) the defendant owed a duty of care to the plaintiff,
(2) the defendant breached this duty of care,
(3) the plaintiff suffered injury, and
(4) the defendant’s negligent act caused the plaintiff’s injury.

Each of these elements is discussed in the paragraphs that follow.

Unintentional Torts (Negligence)
Duty of Care
To determine whether a defendant is liable for negligence, it must first
be ascertained whether the defendant owed a duty of care to the
plaintiff. Duty of care refers to the obligation that people owe each
other—that is, the duty not to cause any unreasonable harm or risk of
harm.
The courts decide whether a duty of care is owed in specific
cases by applying a reasonable person standard. Under this test, the
courts attempt to determine how an objective , careful, and
conscientious person would have acted in the same circumstances and
then measure the defendant’s conduct against that standard. The
defendant’s subjective intent (“I did not mean to do it”) is immaterial in
assessing liability.
Defendants with a particular expertise or competence are
measured against a reasonable professional standard.
Unintentional Torts (Negligence)

Breach of Duty
Once a court finds that a defendant actually owed the plaintiff a duty of
care, it must determine whether the defendant breached that duty. A
breach of the duty of care is a failure to exercise care. In other words, it
is the failure to act as a reasonable person would act. A breach of this
duty may consist of either an action (e.g. throwing a lit match on the
ground in the forest and causing a fire) or failure to act when there is a
duty to act (e.g. a firefighter refusing to put out a fire). Generally,
passerby are not expected to rescue others gratuitously to save them
from harm.
Unintentional Torts (Negligence)

Injury to Plaintiff
Even though a defendant’s act may have breached a duty of care owed to
the plaintiff, this breach is not actionable unless the plaintiff suffers
injury.
The damages recoverable depend on the effect of the injury on
the plaintiff’s life or profession.
Actual Cause
A defendant’s negligent act must be the actual cause, or the causation in
fact, of the plaintiff’s injuries.
If a corporation negligently pollutes the drinking water in a town
and a certain number of people in the town suffer from kidney failure, to
hold the corporation responsible in tort would require showing that
cause-and-effect relationship exists between these two occurrences.
Unintentional Torts (Negligence)

Proximate Cause
Under the law, a negligent party is not necessarily liable for all
damages set in motion by his or her negligent act. Based on public
policy, the law establishes a point along damage chain after which the
negligent party is no longer responsible for the consequences of his or
her actions. This limitation on liability is referred to as proximate
cause, or legal cause. The general test of proximate cause is
foreseeability. A negligent party who is found to be the actual cause—
but not the proximate cause—of the plaintiff’s injuries is not liable to
the plaintiff. Situations are examined on a case-by-case basis.

The landmark case establishing the doctrine of proximate cause is

Palsgraf v. The Long Island Railroad Company (p. 126 of the Book and
the Case brief that follows here).
Palsgraf v. Long Island Railroad Co. Brief

• Facts: Whilst the defendant’s employees were helping a passenger aboard a

train, the package he was carrying was dislodged and fell on the track. The
package, which gave no indication of its contents, contained fireworks which
exploded when they hit the track. The vibrations from the explosion caused
scales some distance away to fall upon and injure the plaintiff Helen Palsgraf,
an intending passenger. Palsgraf sued the railroad, claiming negligence. The
Trial Term and the Intermediate Appeals Court found in favor of Palsgraf. The
Long Island Railroad Co. appealed.
• Issue: Did the defendant (Long Island Railroad Co.) act negligently toward
the plaintiff (Helen Palsgraf) by actions that caused another passenger’s
unmarked package of of fireworks to explode, knocking scales over on the
plaintiff.
• Decision: No. Negligence is constituted by a breach of duty to the individual
complaining the neglect of which invades a legally protected interest. The
Court of Appeals of New York reversed the decision of the lower courts and
dismissed the complaint, with costs in all courts
Palsgraf v. Long Island Railroad Co. Brief

• Reason: Before an action may be considered negligent, a failed duty to the

individual complaining must be found, which would have averted or avoided the
injury. Nothing about the situation reasonably suggested that the fall of the
package would result in an explosion which would harm those at a distance. As
such, there was nothing which could foreseeably be done to prevent the
accident. Thus, the defendant did not act toward the plaintiff negligently. Any
negligence was to the passenger the contents of whose package were destroyed.
• “Negligence is not actionable unless it involves the invasion of a legally protected
interest, the violation of a right.” Negligence towards another passenger does
not constitute negligence toward the plaintiff, though injury may result. For an
act to be considered negligent, a violation of the complaining individual’s right
must have occurred. One cannot complain of negligence to another party.
• The Dissenting opinion argued that because negligence toward another
passenger caused the injury to the plaintiff, the railroad should be liable. Often
injury does not result from infringement of rights. A negligent act affects the
world at large. Thus, an act may be negligent to the world at large, and the
defendant is liable to anyone injured by the act, however unexpected the injury.
Special Negligence Doctrines

Res Ipsa Loquitur

If a defendant is in control of a situation in which a plaintiff has been
injured and has superior knowledge of the circumstances surrounding
the injury, the plaintiff might have difficulty proving the defendant’s
negligence. In such a situation, the law applies the doctrine applies the
doctrine of res ipsa loquitur (Latin for “ the thing speaks for itself”).
This doctrine raises a presumption of negligence and switches the
burden to the defendant to prove that he or she was not negligent. Res
ipsa loquitur applies in cases where the following elements are met:
1. The defendant had exclusive control of the instrumentality or
situation that caused the plaintiff’s injury.
2. The injury would not have ordinarily occurred but for someone’s
negligence.
Special Negligence Doctrines
Fireman’s Rule
Under the fireman’s rule, a firefighter who is injured while putting out
a fire may not sue the party whose negligence caused the fire. This rule
has been extended to police officers and other government workers.
The bases for this rule are (1) people might not call for help if they
could be held liable; (2) firefighters, police officers, and other such
workers receive special training for their jobs; and (3) these workers
have special medical and retirement programs that are paid for by the
public.
“Danger Invites Rescue” Doctrine
The law recognizes a “danger invites rescue” doctrine. Under this
doctrine, a rescuer who is injured while going to someone’s rescue can
sue the person who caused the dangerous situation.
Special Negligence Doctrines

Liability of Common Carriers and Innkeepers

The common law holds common carriers and innkeepers to a higher
standard of care than it does other businesses. Common carriers and
innkeepers owe a duty of utmost care—rather than a duty of ordinary
care—to their passengers and guests. The concept of utmost care is
applied on a case-by-case basis. Obviously, a large hotel must provide
greater security to guests than “mom-and-pop” motel.
Defenses against Negligence

A defendant in a negligence lawsuit may raise several defenses to the

imposition of liability. These defenses are discussed in the following
paragraphs.
Superseding, or Intervening, Event
Under negligence, a person is liable only for foreseeable events.
Therefore, an original negligent party can raise a superseding, or
intervening, event as a defense to liability.
Assumption of the Risk
If a plaintiff knows of and voluntarily enters into or participates in a
risky activity that results in injury, the law recognizes that the plaintiff
assumed, or took on, the risk involved. Thus, the defendant can raise
the defense of assumption of the risk against the plaintiff. This defense
assumes that the plaintiff (1) had knowledge of the specific risk and (2)
voluntarily assumed that risk.
Defenses against Negligence

Contributory Negligence
Sometimes a plaintiff is partially liable for causing his or her own
injuries. Under the common law doctrine of contributory negligence, a
plaintiff who is partially at fault for his or her own injury cannot
recover against the negligent defendant. Many states follow this rule.
Comparative Negligence
The application of the doctrine of contributory negligence could reach
an unfair result where a party only slightly at fault for his or her injuries
could not recover from an otherwise negligent defendant. Many states
have replaced the doctrine of contributory negligence with the doctrine
of comparative negligence. Under this doctrine, damages are
apportioned according to fault.