Reference no: EM133199717

Read the textbook information provided and review the highlighted case and answer the discussion question. No research or citations are needed. Just analyze based on information in text and answer discussion question.

Discussion question :

Re-read "6-4b Causation" in your text (page 127 & 128-Proximate Cause and Foreseeability). State your opinion to the question posed in "example 6.25": Should Ackerman be liable to the resort owners? To the tourists?

Unintentional Torts-Negligence

The tort of negligence occurs when someone suffers injury because of another's failure to live up to a required duty of care. In contrast to intentional torts, in torts involving negligence, the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. The person's conduct merely creates a risk of such consequences. If no risk is created, there is no negligence.

Moreover, the risk must be foreseeable. In other words, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it. In determining what is reasonable conduct, courts consider the nature of the possible harm.

Many of the actions giving rise to the intentional torts discussed earlier in the chapter constitute negligence if the element of intent is missing (or cannot be proved).

Example 6.22.

Juan walks up to Maya and intentionally shoves her. Maya falls and breaks her arm as a result. In this situation, Juan is liable for the intentional tort of battery. If Juan carelessly bumps into Maya, however, and she falls and breaks her arm as a result, Juan's action constitutes negligence. In either situation, Juan has committed a tort.

To succeed in a negligence action, the plaintiff must prove each of the following:

Duty. The defendant owed a duty of care to the plaintiff.
Breach. The defendant breached that duty.
Causation. The defendant's breach caused the plaintiff's injury.
Damages. The plaintiff suffered a legally recognizable injury.
6-4a. The Duty of Care and Its Breach

Central to the tort of negligence is the concept of a duty of care. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others. When someone fails to comply with the duty to exercise reasonable care, a potentially tortious act may have been committed.

Failure to live up to a standard of care may be an act (accidentally setting fire to a building) or an omission (neglecting to put out a campfire). It may be a careless act or a carefully performed but nevertheless dangerous act that results in injury. In determining whether the duty of care has been breached, courts consider several factors:

The nature of the act (whether it is outrageous or commonplace).
The manner in which the act was performed (cautiously versus heedlessly).
The nature of the injury (whether it is serious or slight).
Creating even a very slight risk of a dangerous explosion might be unreasonable, whereas creating a distinct possibility of someone's burning his or her fingers on a stove might be reasonable.

The Reasonable Person Standard

Tort law measures duty by the reasonable person standard. In determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances. The reasonable person standard is said to be objective. It is not necessarily how a particular person would act. It is society's judgment of how an ordinarily prudent person should act. If the so-called reasonable person existed, he or she would be careful, conscientious, even tempered, and honest.

The degree of care to be exercised varies, depending on the defendant's occupation or profession, her or his relationship with the plaintiff, and other factors. Generally, whether an action constitutes a breach of the duty of care is determined on a case-by-case basis. The outcome depends on how the judge (or jury) decides that a reasonable person in the position of the defendant would have acted in the particular circumstances of the case.

Note that the courts frequently use the reasonable person standard in other areas of law as well as in negligence cases. Indeed, the principle that individuals are required to exercise a reasonable standard of care in their activities is a pervasive concept in business law.

The Duty of Landowners

Landowners are expected to exercise reasonable care to protect individuals coming onto their property from harm. In some jurisdictions, landowners may even have a duty to protect trespassers against certain risks. Landowners who rent or lease premises to tenants are expected to exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas, such as stairways, entryways, and laundry rooms.

The Duty to Warn Business Invitees of Risks

Retailers and other business operators who explicitly or implicitly invite persons to come onto their premises have a duty to exercise reasonable care to protect these business invitees. The duty normally requires storeowners to warn business invitees of foreseeable risks, such as construction zones or wet floors, about which the owners knew or should have known.

Example 6.23.

Liz enters Kwan's neighborhood market, slips on a wet floor, and sustains injuries as a result. If there was no sign or other warning that the floor was wet at the time Liz slipped, the owner, Kwan, would be liable for damages. A court would hold that Kwan was negligent because he failed to exercise a reasonable degree of care to protect customers against foreseeable risks about which he knew or should have known. That a patron might slip on the wet floor and be injured was a foreseeable risk, and Kwan should have taken care to avoid this risk or warn the customer of it.

A business owner also has a duty to discover and remove any hidden dangers that might injure a customer or other invitee. Hidden dangers might include uneven surfaces or defects in the pavement of a parking lot or a walkway, or merchandise that has fallen off shelves in a store.

Obvious Risks Provide an Exception

Some risks are so obvious that an owner need not warn of them. For instance, a business owner does not need to warn customers to open a door before attempting to walk through it. Other risks, however, even though they may seem obvious to a business owner, may not be so in the eyes of another, such as a child. In addition, even if a risk is obvious, a business owner is not necessarily excused from the duty to protect customers from foreseeable harm from that risk.

Case in Point 6.24.

Giorgio's Grill is a restaurant in Florida that becomes a nightclub after hours. At those times, traditionally, as the manager of Giorgio's knew, the staff and customers throw paper napkins into the air as the music plays. The napkins land on the floor, but no one picks them up. One night, Jane Izquierdo went to Giorgio's. Although she had been to the club on prior occasions and knew about the napkin-throwing tradition, she slipped and fell, breaking her leg. She sued Giorgio's for negligence, but lost at trial because a jury found that the risk of slipping on the napkins was obvious. A state appellate court reversed, however, holding that the obviousness of a risk does not discharge a business owner's duty to its invitees to maintain the premises in a safe condition.*

The Duty of Professionals

Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others. Professionals-including physicians, dentists, architects, engineers, accountants, and lawyers, among others-are required to have a standard minimum level of special knowledge and ability. In determining what constitutes reasonable care in the case of professionals, the law takes their training and expertise into account. Thus, an accountant's conduct is judged not by the reasonable person standard, but by the reasonable accountant standard.

If a professional violates his or her duty of care toward a client, the client may bring a suit against the professional, alleging malpractice, which is essentially professional negligence. For instance, a patient might sue a physician for medical malpractice. A client might sue an attorney for legal malpractice.

6-4b. Causation

Another element necessary to a negligence action is causation. If a person breaches a duty of care and someone suffers injury, the person's act must have caused the harm for it to constitute the tort of negligence.

Courts Ask Two Questions

In deciding whether the requirement of causation is met, the court must address two questions:

Is there causation in fact? Did the injury occur because of the defendant's act, or would it have occurred anyway? If the injury would not have occurred without the defendant's act, then there is causation in fact.
Causation in fact usually can be determined by use of the but for test: "but for" the wrongful act, the injury would not have occurred. This test seeks to determine whether there was a cause-and-effect relationship between the act and the injury suffered. In theory, causation in fact is limitless. One could claim, for example, that "but for" the creation of the world, a particular injury would not have occurred. Thus, as a practical matter, the law has to establish limits, and it does so through the concept of proximate cause.

Was the act the proximate, or legal, cause of the injury? Proximate cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability. Proximate cause asks whether the injuries sustained were foreseeable or were too remotely connected to the incident to trigger liability. Judges use proximate cause to limit the scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions.
Example 6.25.

Ackerman carelessly leaves a campfire burning. The fire not only burns down the forest but also sets off an explosion in a nearby chemical plant that spills chemicals into a river, killing all the fish for twenty miles downstream and ruining the economy of a tourist resort. Should Ackerman be liable to the resort owners? To the tourists whose vacations were ruined? These are questions of proximate cause that a court must decide.

Both of these causation questions must be answered in the affirmative for liability in tort to arise. If there is causation in fact but a court decides that the defendant's action is not the proximate cause of the plaintiff's injury, the causation requirement has not been met. Therefore, the defendant normally will not be liable to the plaintiff.

Foreseeability

Questions of proximate cause are linked to the concept of foreseeability because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury. Generally, if the victim or the consequences of a harm done were unforeseeable, there is no proximate cause.

Probably the most cited case on the concept of foreseeability and proximate cause is the Palsgraf case, which established foreseeability as the test for proximate cause.

Case in Point 6.26.

Helen Palsgraf was waiting for a train on a station platform. A man carrying a package was rushing to catch a train that was moving away from a platform across the tracks from Palsgraf. As the man attempted to jump aboard the moving train, he seemed unsteady and about to fall. A railroad guard on the car reached forward to grab him, and another guard on the platform pushed him from behind to help him board the train.

In the process, the man's package, which (unknown to the railroad guards) contained fireworks, fell on the railroad tracks and exploded. There was nothing about the package to indicate its contents. The repercussions of the explosion caused weighing scales at the other end of the train platform to fall on Palsgraf, causing injuries for which she sued the railroad company. At the trial, the jury found that the railroad guards had been negligent in their conduct. The railroad company appealed. New York's highest state court held that the railroad company was not liable to Palsgraf. The railroad had not been negligent toward her, because injury to her was not foreseeableons needed just post facts using information from the text to analyze the case and answer the question.