24 Negligence
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Negligence
Negligence is another type of tort that has two meanings. It is the name of a cause of action in a tort, and it is a form of conduct that does not meet the reasonable standard of care (Kionka, 2013). The cause of action is the reason for the damage, and the standard of care is based on the care that a reasonable person would need in a given situation. Negligence is decided by determining the duty of the defendant, whether or not the defendant committed a breach of that duty, the cause of the injury, and the injury itself.
For an action to be deemed negligent, there must be a legal duty of care, or responsibility to act, based on the reasonable standard in a situation (Baime, 2018). An individual can be considered negligent if he agreed to watch a child, but did not do so, and then harm came to the child. An individual would not be considered negligent if he did not know that he was supposed to watch the child, or did not agree to watch the child.
In some cases, the duty of care is based on a special relationship, which is a relationship based on an implied duty of care. This implied duty of care often comes about as a duty to aid, or a duty to protect another, e.g., a nurse caring for patients in a hospital, or a lifeguard being responsible for swimmers in the guarded area (Baime, 2018). A passerby does not have a duty to aid, but if the individual tries to help, then he or she is responsible for acting responsibly.
The elements of a negligence cause of action are (Kionka, 2013):
- A duty by the defendant to either act or refrain from acting
- A breach of that duty, based on a failure to conform to the standard of care by the defendant
- A causal connection between the defendant’s action or inaction, and the injury to the plaintiff
- Measurable harm that can be remedied in monetary damages
Jensen was employed as a truck driver. He was driving a new, light truck at 40 mph on a mild day when a tire blew out. As a result, his truck collided with another vehicle and caused both extensive damage to the other vehicle and injury to the driver. Most reasonable persons would agree that Jensen was not negligent in this case. But suppose Jensen was driving at 70 mph, the tires were worn, the day and the pavement hot and the truck was heavily loaded. In that case, most people would say that Jensen was negligent. It is not a particular act that constitutes negligence, but the circumstance that surround it.
Foreseeability
Negligence case decisions are influenced by whether or not a defendant could have predicted that an action or inaction could have resulted in the tort, or foreseeability (Baime, 2018). Responsibility is often based on whether or not the harm caused by an action or inaction was reasonably foreseeable, which means that the result was fairly obvious before it occurred (Baime, 2018). A person assisting an inebriated individual into her car could be considered negligent due to the likelihood that harm would come to her while she is driving in an intoxicated state. This situation is an example of the foreseeable probability of harm.
The concept of duty is broad and extends beyond those in immediate physical proximity. In a famous case from California, for example, a radio station with a large teenage audience held a contest with a mobile DJ announcing clues to his locations as he moved around the city. The first listener to figure out his location and reach him earned a cash prize. One particular listener, a minor, was rushing toward the DJ when the listener negligently caused a car accident, killing the other driver. During a negligence trial, the radio station argued that hindsight is not foreseeability and that the station therefore did not owe the dead driver a duty of care. The California Supreme Court held that when the radio station started the contest, it was foreseeable that a young and inexperienced driver may drive negligently to claim the prize and that therefore a duty of care existed.Weirum v. RKO General, 15 Cal.3d 40 (1975). Radio stations should therefore be very careful when running promotional contests to ensure that foreseeable deaths or injuries are prevented. This lesson apparently eluded Sacramento station KDND, which in 2007 held a contest titled “Hold Your Wee for a Wii” where contestants were asked to drink a large amount of water without going to the bathroom for the chance of winning a game console. An otherwise healthy twenty-eight-year-old mother died of water intoxication hours after the contest, which led to a lawsuit and a $16 million jury verdict.
Conclusion
Intentional torts and negligence arise based on intentional and unintentional acts committed by individuals. Damages are decided in civil courts by first determining fault and harm, and then by assigning a remedy. Sometimes, the damage can be excused if the circumstances indicate that the defendant acted with permission, or in his or her own defense. The main standard used to make a decision is the reasonable standard of care: what would a reasonable person do?
