Negligence 577
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Lawsuits based on negligence are the most common kind of civil action in the area of tort law. Negligence is usually defined as the failure to exercise the degree of care that a reasonable, prudent person would have exercised under the circumstances. This is sometimes called a lack of" due care." If such lack of care causes harm (physical, mental, or economic) to the plaintiff, the defendant may be liable to pay damages. If the plaintiff has also been negligent, however, and such negligence contributes to the harm he or she complains of, his or her recovery may be reduced or lost entirely. (See "Contributory and Comparative Negligence" below.) This demonstrates the "fault" basis that characterizes this area of tort law.

In the United States, tort law in generally defined by state rather than federal law. Negligence cases often get to federal court through diversity jurisdiction, but the case will be tried with some state's negligence law as the basis for decision. Moreover, the state law of negligence is usually common law rather than statutory law, with the effect that what is determined to be a lack of due care will differ from state to state. Even within a particular state, certain kinds of acts found negligent by a court in one community may not be found to constitute negligence in another community. Outcomes will often depend on the differing sensibilities of the juries in various communities, the advocacy talents of attorneys for plaintiffs and defendants, the particular judge, the tenor of the times, and the personalities of the jury sitting in judgment on a negligence case.


Negligence is unintentional neglect, in contrast to intentional torts or strict liability torts. In most states, strict liability applies to the seller of a product in a defective condition that is unreasonably dangerous because of that condition and causes harm. The seller may not intend harm or even be negligent, yet where the doctrine of strict liability applies, plaintiffs may obtain a damages award without proving the manufacturer was negligent in the design, production, or marketing of the product. Negligence actions also differ from intentional torts (such as assault, malicious prosecution, or defamation) since negligence usually involves offending acts that are careless rather than deliberate or malicious. In most states, courts consider intentional torts to be more blameworthy than negligent torts, and are thus more likely to bring requests for punitive damages (damages that greatly exceed the actual loss to plaintiff).


To succeed in any negligence case in the United States, the plaintiff must prove that the defendant had a legal duty, and breached that duty, causing harm and damages to the plaintiff. Proving all four elements of a negligence case requires that the plaintiff introduce some credible evidence for each element. Failing to do so will ordinarily result in the judge granting the defendant's motion to dismiss the plaintiff's case, usually by means of a directed verdict at the close of plaintiff's evidence.


The first two elements establish the core of defendant's negligence: the defendant's duty and the breach of that duty. These elements can be established in one of three ways. Usually, a plaintiff will allege that the defendant had a duty to act as a reasonably prudent person would act. (Corporations are also considered "persons" for purposes of civil lawsuits.) The "reasonably prudent" person standard is a phrase common to most judges when they instruct juries to decide whether the defendant's acts were negligent. Thus, if a defendant fails to warn of a known danger that a reasonably prudent person would have known and warned of, the defendant will likely be found to have breached a legal duty to warn.

In some cases, the burden on the plaintiff to establish the breach of a duty of reasonably prudent care is practically impossible. For a few such cases, the doctrine of res ipsa loquitur ("the thing speaks for itself") may help a plaintiff establish duty and breach of duty. In a seminal cas6 Escola v. Coca-Cola Bottling Co. of Fresno (1944), a waitress had sustained severe injuries to her wrist while transferring freshly delivered bottles of Coke from their cases to the restaurant's refrigerator. One of the bottles exploded. The cause of this explosion could not be explained by the way that the bottles were handled after their delivery. The court noted that if the product causing the injury had not been mishandled by the plaintiff and was recently under the exclusive care, custody, and control of the defendant, the events described by plaintiff would ordinarily not occur without some lack of due care on the part of the defendant. In this way, plaintiff could establish breach of duty without specifying in what way the defendant's conduct had been negligent. Application of the doctrine requires that (1) only the defendant controls the cause of the harm, (2) the event would not ordinarily have occurred without some negligence as its cause, and (3) the event must not have been due to any actions of the plaintiff.

Duty and breach of duty can also sometimes be proven by means of a doctrine known as negligence per se. In many cases the defendant's conduct is a violation of a state or federal law. The law establishes the defendant's duty, and the failure to comply with some specific law is the breach of that duty. Taken together, this amounts to negligence per se. In such cases, the judge and/or jury need not consider whether the defendant's conduct has been that of a reasonably prudent person. Rather, the law has set standards of conduct and care (reasonable or not) that people are expected to meet, and failing to do so may not only result in sanctions for noncompliance, but may separately be actionable as a tort by those who are harmed by the noncompliance.


Causing harm is critical to the third and fourth elements of a negligence case, causing harm and damages to the plaintiff. The failure to act as a reasonably prudent person, or to comply with some applicable law, may or may not cause harm. A reasonably prudent company would not carelessly produce a product that would cause harm to the ordinary user. But, having negligently produced such a product, the company will not be liable to any consumers unless the product is sold, is used or consumed in the expected manner, and results in actual harm.

Actual harm may often be absent. When a restaurant cooks up supposedly boneless chicken nuggets and one of them has a small bone inside capable of choking a patron, the negligently produced nugget may be discovered by the patron before trying to swallow it. In most courts, the patron's shock at discovering the potential harm will not amount to the kind of harm ordinarily compensated by damages. But if the bone is discovered after it has lodged in the patron's throat, then some damages are likely to be awarded. The amount of such damages will vary greatly, depending on the location of the court, the amount of sympathy that can be generated for the plaintiff, and (often) the apparent ability of the defendant to pay damages.

Even if there is demonstrable harm, however, causation may still be an issue in negligence cases. The harm to plaintiff must be actually and proximately caused by the defendant's actions. Actual cause means that without (or "but for") the defendant's negligence, the harm to plaintiff would not have occurred. Thus, where a delivery van exceeds the posted speed limit by ten miles per hour and collides with a car that stops suddenly ahead, the jury may reasonably find that the driver's negligence (in this case, negligence per se) has actually caused the injuries to occupants inside the vehicle he struck. But if one of the occupants (a young child, say) is killed or seriously injured, and grandparents far from the scene of the accident become consumed with grief, their pain and suffering will not be compensated, even though they would not be so aggrieved "but for" the negligence of the driver. In such a case, actual cause is established, but not proximate cause. Proximate cause (sometimes known as "legal cause") sets limits on the legal consequences of negligent acts, and is most often decided by the judge (deciding on legal cause) rather than the jury (which determines more factual matters).

Proximate cause limits the legal liability for negligent acts by allowing plaintiffs to recover only in cases where the harm is a reasonably foreseeable result of the negligence. Assume an architect's design for an elevated walkway in a hotel atrium is defective, and the walkway collapses two years after its construction, injuring hotel patrons both on and under the walkway. Assume also that the design defect is the result of the architect's failure to use that degree of care that is usual and customary among members of his profession and is, therefore, a breach of the generalized duty of due care. Finally, assume that three blocks from the hotel, a pedestrian is startled upon hearing the loud crash of the atrium walkway and involuntarily jumps off the curb where he awaits a crossing signal. Struck by a passing car and injured, he later sues the architect in a negligent tort case, and proves duty, breach of duty, and harm. But the third element, cause, is only partly present: although the harm most likely would not have occurred "but for" the negligence of the architect, the doctrine of proximate cause would limit the architect's liability to those consequences that were reasonably foreseeable. The pedestrian's injuries from a passing car are consequences too remote and unforeseeable for the law to pin on the architect's original negligence.


Businesses may be held liable in a negligence case for providing goods or services. Slightly different standards apply for each kind of case, and liability for negligent goods will be discussed first.

In practice, negligence by a business entity selling goods can mean the failure to properly (1) design the product, (2) select the materials, (3) produce, assemble, inspect, and/or test the product, and (4) place warnings adequate to the average consumer regarding any hazards of which an ordinary person might not be aware. For product design, the usual and customary design practices of an industry will be relevant evidence in establishing the appropriate degree of care. Where a company's product embodies "state of the art" design, a finding of negligent product design would be most unlikely.

Manufacturers, distributors, and retailers all have some duties to carefully assemble or inspect merchandise where doing so would be within the realm of reasonably prudent behavior. For example, a car dealership might be held liable for negligently putting customized wheels on a car by failing to properly tighten the lug nuts, so that within twenty miles of operation the car loses a wheel and the driver is seriously injured. But a grocery store will not be liable for failing to inspect all its canned peas for possible metal objects hidden in the cans. (Liability may attach, however, on the basis of strict liability, or on some contractual bases such as the implied warranty of merchantability.)

For services, exposure to claims of negligence will typically arise where the service provider has failed to exercise that degree of care that is usual and customary (a) for members of that profession (b) in the community where such services are delivered. Malpractice is the usual name given to a professional's failure to provide that degree of care, and an aggrieved patient, client, or customer must allege and establish the appropriate level of care for the particular community and also show that the defendant's conduct fell short. Anyone offering a service to the public may be liable, including doctors, lawyers, bankers, insurance agents, hair stylists, architects, or designers.


Even where the defendant has breached a duty of due care, the plaintiff must establish measurable harm caused (both actually and proximately) by the defendant's conduct. The plaintiff's failure to do so will typically result in a directed verdict in defendant's favor.

Apart from any defects in plaintiff's part of the case, the defendant can (in appropriate cases) affirmatively plead contributory negligence, comparative negligence, or assumption of risk.

Proving such matters can reduce or avoid legal liability even where the defendant has been negligent.


If a defendant can prove that the plaintiff failed to exercise due care for his or her own protection, and that this failure was a contributing cause to plaintiff's injuries, a few jurisdictions will recognize this contributory negligence as a complete defense. Under this defense the plaintiff's conduct is found to fall below a level reasonable for his or her own protection. For example, suppose that a fast-food restaurant serves its coffee at a dangerously high temperature but does not inform its customers that their coffee is considerably hotter than other restaurants or that customers have often been burned by coffee spills. A drive-through customer who is burned in a careless attempt to open the lid with his teeth while driving in traffic may be found to have demonstrated a lack of due care (i.e., he is negligent, too). Moreover, if that failure is found to contribute to plaintiff's injuries, some states' laws would deny any recovery to plaintiff.

Where one party is clearly much more negligent than another, the doctrine of contributory negligence has sometimes led to unjust results. One attempt by states to meet this problem was the doctrine of comparative negligence, which in most states has replaced contributory negligence. In such states, comparative negligence does not bar recovery, but reduces it. The jury is asked to assign a particular percentage for the negligence of both plaintiff and defendant.

Consider a case in which the driver of a pizza delivery vehicle (A) negligently speeds through an intersection and collides with another vehicle. Suppose the driver of the other vehicle (B) was also negligent, but for a different reason: he failed to heed a stop sign. A and B have breached the duty of due care. In comparative negligence states, if A and B are seriously injured and sue each other for damages under a negligence theory, the jury will determine the proportionate degree of fault and adjust their damages accordingly.

If the jury determines that B was responsible for 60 percent of the negligence that injured A and B, any damages that B can prove in a negligence case against the pizza company or its driver/agent (A) would be reduced by 60 percent. If B sues A (and the pizza company) for $100,000 in provable damages, the court could award B no more than $40,000 in a "pure comparative negligence" state. If A sues (or counterclaims against) B and has $100,000 in provable damages, this amount will be reduced by 40 percent, leaving a recovery of $60,000. In a state where contributory negligence (rather than comparative negligence) is the rule, neither A nor B would recover anything.

In a substantial number of states, pure comparative negligence is modified so that a litigant who is 50 percent negligent or more (or, in some states, is more than 50 percent negligent) would recover nothing. A jury that cannot decide comparative percentages to a precise degree will sometimes decide which litigant it favors, and determine that one was 49 percent negligent and the other was 51 percent negligent. Thus, in a mixed comparative negligence state, a finding that the plaintiff was 49 percent negligent would minimize the plaintiff's recovery and foreclose any counterclaim by the defendant. As suggested above, some states would allow a litigant to recover even if the jury assigned a share of negligence as high as 50 percent, but no comparative negligence state would allow a litigant who was found to be 51 percent negligent to recover.


While contributory negligence is characterized by the plaintiff's failure to use proper care for his or her own safety, the assumption of risk defense arises from the plaintiff's knowing and willing undertaking of an activity generally known to be dangerous. A patron at a baseball game may be injured by a sizzling line drive, and while a cautious ballpark might provide continuous netting to separate players from fans, none do. Knowing this, a patron may elect to sit behind the partial netting in back of home plate, or take the risks inherent in a less protected part of the field. Assumption of the known risk, where found, will negate liability for any finding that the defendant was less than reasonably prudent in its activities. Similar cases involve the well-known risks of colliding with other skiers on a busy slope, watching a stock-car race from temporary grandstands near the pitstop area, or attending a hockey game and sitting where pucks are likely to clear the protective glass.

Assumption of risk is different from contributory negligence in that it involves a conscious or presumed decision on the part of the plaintiff to encounter a known risk. As such, where a defendant shows that the plaintiff assumed a known risk, and the defendant's activities were not unusually careless or negligent, plaintiff will not recover. some states with comparative negligence decisions, however, have transformed assumption of risk into a question of comparative fault, and if the plaintiff is able to prove that the defendant was negligent, a process of relative faultfinding may lead to some recovery for plaintiff.

Some businesses attempt to protect themselves against claims of negligence by giving customers a statement to the effect that they enter the premises or engage in certain activities entirely at their own risk. Where the risks are of the kind not generally known to the public, however, or where the statement about the risk is hidden in a mass of fine print, the court's acceptance of assumption of risk as a defense is far from automatic. Maximum protection is gained under this doctrine where the risks are well-known to the public or clearly articulated to the customers, and where the customers acknowledge receiving and understanding the extent of the risk they are about to assume.


As mentioned at the outset, tort law has traditionally been the province of state rather than federal law. In negligence cases, state laws have generally allowed recovery of consequential damages and, occasionally, punitive damages. Consequential damages include compensation for personal injuries and property damage, as well as indirect economic losses (lost wages as a result of disabling injuries, for example). Consequential damages also have included noneconomic losses, such as pain and suffering, mental distress, and loss of companionship or consortium. Such noneconomic losses are generally part of a plaintiff's personal injury claim. Recently, several states have limited noneconomic damages by imposing dollar "caps."

More recently, the Supreme Court for the first time placed limits on states' imposition of punitive damage awards. In BMW of North America, Inc. v. Gore (1996), an owner of a BMW was apprised nearly a year after his purchase that the car had been repainted before it ever arrived at the showroom. Such a repainting was considered by BMW to be a minor repair, costing less than 3 percent of the car's overall value ($40,000). Nonetheless, had such a repainting been disclosed, the market value of the car would have been 10 percent less. Dr. Gore, the owner, argued (successfully) that he was entitled to $4,000 compensatory damages (the amount he paid in excess of the market value of the car). Dr. Gore's attorney argued that BMW of North America had systematically been defrauding customers in its failure to disclose such repairs. BMW argued that such no state specifically required disclosure unless the repairs exceeded 3 percent of the car's value; the Alabama jury, however, sought to punish BMW for its actions in the U.S. market by imposing a punitive damages award that was 1,000 times the compensatory award of $4,000.

In so doing, the Supreme Court found a Constitutional problem with such an "excessive" award. Due process under the 14th Amendment to the Constitution could not arbitrarily deprive BMW of North America of its property through a punitive damages award that appeared to punish BMW for behavior that was presumably lawful in most other states. More challenges to punitive damage awards will ultimately give more definition to the Court's admonishment, but at present, states may not deprive defendants of due process by imposing "grossly excessive" punitive damage awards.

Even so, punitive damage awards will continue, especially where businesses act for profit in ways that offend the sensitivities and ethics of ordinary lay jurors. This is most likely in cases where the defendant's conduct is perceived as deliberate, willful, reckless, or wanton. Business has lobbied, with some success, to put caps or limits on the multiples by which punitive damages can exceed compensatory damages. Most proposals for tort reform at the federal level have such proposed limitations, but have languished in Congress since 1994.

SEE ALSO : Product Liability

[ Donald O. Mayer ]


Phillips, Jerry J. Products Liability: In a Nutshell. 5th ed. St. Paul, MN: West/Wadsworth, 1998.

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