Torts

Negligence

The concept of negligence is central to the tort system of liability. The negligence concept is centered on the principle that every individual should exercise a minimum degree of ordinary care so as not to cause harm to others.

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person. (Cal.Civ.Code § 1714(a).) "Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong." (Stephenson v. Southern Pac. Co. (1894) 102 Cal. 143, 147.)

NEGLIGENCE AND ORDINARY CARE-DEFINITIONS

Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the same or similar circumstances. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use.

NEGLIGENCE-ESSENTIAL ELEMENTS

The elements of a cause of action in tort for negligence are: (1) a duty to use ordinary care; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury and (4) resulting damage. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

In other words, the essential elements of a claim of negligence are:

1. The defendant was negligent;

2. Defendant's negligence was a cause of injury, damage, loss or harm to plaintiff.

A TEST FOR DETERMINING THE QUESTION OF NEGLIGENCE

One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is "yes", and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.

AMOUNT OF CAUTION VARIES

The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under the same or similar circumstances.

RIGHT TO ASSUME OTHERS' GOOD CONDUCT

Every person who is exercising ordinary care, has a right to assume that every other person will perform his her duty and obey the law, and in the absence of reasonable cause for thinking otherwise, it is not negligence for such a person to fail to anticipate an accident which can occur only as a result of a violation of law or duty by another person.

RIGHT TO ASSUME OTHERS' NORMAL FACULTIES

A person who is exercising ordinary care has a right to assume that other persons are ordinarily intelligent and possessed of normal sight and hearing, in the absence of reasonable cause for thinking otherwise.

DUTY TO ANTICIPATE CRIMINAL CONDUCT OF THIRD PERSON

When the circumstances are such that the possibility of harm caused by the criminal conduct of a third person is, or in the exercise of due care should be, reasonably foreseeable, it is negligence to fail to use reasonable care to prevent such criminal act from causing injury or damage.

EVIDENCE OF CUSTOM IN RELATION TO ORDINARY CARE

Evidence as to whether a person conformed or did not conform to a custom that had grown up in a given locality or business is relevant and ought to be considered, but is not necessarily controlling on the issue whether such person was negligent.

STANDARD OF CONDUCT FOR MINOR

A minor is not held to the same standard of care as an adult. A minor is required to exercise the degree of care which ordinarily is exercised by minors of like maturity, intelligence and capacity under similar circumstances.

IMPAIRED PHYSICAL FACULTIES-AMOUNT OF CAUTION

The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under the same or similar circumstances.

CARE REQUIRED FOR SAFETY OF MINOR

Ordinarily it is necessary to exercise greater caution for the protection and safety of a young child than for an adult person who possesses normal physical and mental faculties. One dealing with children must anticipate their ordinary behavior. The fact that children usually do not exercise the same degree of prudence for their own safety as adults, or that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on those dealing with children, and from whose conduct injury to a child might result.

NEGLIGENCE PER SE--VIOLATION OF STATUTE, ORDINANCE, OR SAFETY ORDER

The violation of a law or statute that results in injury to another may constitute negligence per se. However, just because a statute has been violated does not mean that the violator is necessarily liable for any damage that might be ultimately traced back to the violation. "The doctrine of negligence per se does not apply even though a statute has been violated if the plaintiff was not in the class of persons designed to be protected or the type of harm which occurred was not one which the statute was designed to prevent." (Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 902-903) Mere "but for" causation, is simply not enough. The statute must be designed to protect against the kind of harm which occurred.

CONTRIBUTORY NEGLIGENCE--DEFINITION

Contributory negligence is negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury. "Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm." (Rest. 2d Torts, § 463.)

Traditionally, any amount of contributory negligence on the part of a plaintiff, no matter how small, operated as a total bar to recovery. However, the modern rule of comparative negligence has softened the harsh effect of the traditional rule. The majority of states have now abrogated the "all-or-nothing" rule of contributory negligence and have enacted in its place general apportionment statutes calculated in one manner or another to assess liability in proportion to fault. Hence, in most jurisdictions, contributory negligence is no longer a total bar to plaintiff's recovery. Contributory negligence, if any, on the part of the plaintiff does not bar a recovery by the plaintiff against the defendant but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduced in proportion to the amount of negligence attributable to the plaintiff. (Li v. Yellow Cab (1975) 13 Cal.3d 804) In California, the doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence.

In the federal sphere, comparative negligence of the "pure" type has been the rule since 1908 in cases arising under the Federal Employers' Liability Act (see 45 U.S.C. § 53) and since 1920 in cases arising under the Jones Act and the Death on the High Seas Act.

CONTRIBUTORY NEGLIGENCE--FORGETFULNESS OF KNOWN DANGER

If a plaintiff voluntarily proceeds into a dangerous situation of which he or she had previous knowledge, but momentarily forgot the danger, such forgetfulness is not in itself contributory negligence unless under all the circumstances it shows an absence of ordinary care not to have kept the danger in mind.

RECOVERY FOR INTENTIONAL HARM NOT DIMINISHED BY CONTRIBUTORY NEGLIGENCE

Contributory negligence, if any, on the part of the plaintiff does not reduce any recovery by the plaintiff against the defendant for an injury caused by misconduct of the defendant, if the defendant intended to inflict harm upon the plaintiff.

CONTRIBUTORY NEGLIGENCE--MINORS

In California, a minor under the age of five years is incapable of contributory negligence as a matter of law. Contributory negligence, if any, on the part of the minor over the age of five years does not bar a recovery against the defendant but the total amount of damages to which the minor would otherwise be entitled is reduced in proportion to the amount of negligence attributable to the minor. The negligence, if any, of the parents, or either of them, does not bar or reduce recovery of damages for injuries to the minor.

DUTY OF PASSENGER FOR OWN SAFETY

One who is simply a passenger in a motor vehicle and has no right to the control or management of such vehicle nevertheless has the duty to exercise the same ordinary care for his or her own safety and protection as a person of ordinary prudence would take under the same or similar circumstances. The passenger has the duty of doing whatever a person of ordinary prudence in the same situation would do to inform or warn the driver in an effort to prevent an accident.

Contributory negligence, if any, by the passenger does not bar recovery against the defendant but the total amount of damages to which the passenger would otherwise be entitled shall be reduced in proportion to the amount of negligence attributable to the passenger.

RES IPSA LOQUITUR -- NECESSARY CONDITIONS FOR APPLICATION

Res ipsa loquitur is the name of a doctrine that permits a trier of fact to infer the existence of negligence in the absence of direct evidence of negligence. For the doctrine to apply it must be shown that:

First, that it is the kind of accident or injury which ordinarily does not happen unless someone is negligent;

Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant over which the defendant had the exclusive right of control originally, and which was not mishandled or its condition otherwise changed after defendant relinquished control; and

Third, that the accident or injury was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of plaintiff's injury.

RES IPSA LOQUITUR -- PRESUMPTION OF NEGLIGENCE

If the foregoing circumstances are established, the trier of fact must find from the happening of the accident or incident involved that a cause of the occurrence was some negligent conduct on the part of the defendant.

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