Negligence

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Negligence
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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

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• "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)

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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

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• "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)

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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

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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

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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

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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

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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

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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

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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?

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Damage

• Claimants must have suffered damage from the
  negligent act
• Physical damage
• Economic damage or
• both

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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)

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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

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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)

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Case StudyLiebeck v.McDonalds

• Stella Liebeck (79) bought a cup of coffee for 49
  cents at the drive-through window of a McDonalds
  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

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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.

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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.

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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.

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Allegation

• Liebeck sued McDonalds, alleging that the coffee
  was too hot

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Decision

• The jury awarded her 160,000 to compensate her
  for her injuries and 2.7 million to punish
  McDonalds

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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

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Defenders of tort law

• They see Liebecks case as the evidence of how
  well the tort system works
• McDonalds 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

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Jurys reasoning in the case

• 2,7 million was the amount that McDonalds 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

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The judges decision

• The trial judge further reduced the punitive
  damages to 480.000

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The result

• After this case, McDonalds reduced the
  temperature of its coffee
• A wrongdoer was forced to compensate an injured
  victim and to remedy its dangerous conduct

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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.

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• 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.