When You Harm Others by Accident
by: Carl Vinson Institute of Government, University of Georgia
When You Harm Others by Accident
This document tells you the following:
- What is negligence?
- What criteria must be met in order to prove neglience?
- What is a legal duty that one person may have to another?
- What is the standard of care?
- What is proximate cause?
- What is foreseeable damage?
- What is actual damage?
- What is a product liability suit?
- What is strict liability?
- What are possible defenses to negligence and strict liability?
- What is assumption of the risk?
- What is comparative (or contributory) negligence?
- What is the tort for abuse of the judicial process?
- How can you protect yourself from being sued for a tort?
NEGLIGENCE
What if someone's person or property is harmed because of something you do or don't do unintentionally? This kind of situation is called negligence. Negligence is perhaps the most common form of tort. It is the type most likely to result in a lawsuit. Today, the most common acts of negligence occur in the operation of automobiles.
To prove negligence, the plaintiff must show that the defendant had a legal duty to the plaintiff that he or she failed to perform (breach of duty). Furthermore, the plaintiff must prove that the breach of the defendant's duty was the "proximate cause" of the actual injury and damages suffered by the plaintiff (that is, what the defendant did or did not do that led to the injury or damages).
Legal Duty and Failure to Perform It
What is a legal duty that one person may have to another? A legal duty is, simply stated, that standard of care that society expects every person to exercise for the safety and convenience of others.
Sometimes duties are imposed by statute. Standard of care is measured by the supposed conduct of an imaginary "reasonable and prudent person." A breach of duty occurs when this standard of care is not met. To illustrate, look at the two situations that follow. Did negligence result from failure to carry out legal duties?
SITUATION 22 Trudy has just waxed her kitchen floor. It is quite slippery when Ingrid comes to visit Trudy. Unaware, Ingrid walks into the kitchen. She slips and falls.
Is Trudy negligent?
SITUATION 23 Del has a pile of leaves and tree branches that he wishes to burn. Although the wind is blowing steadily, Del sets the refuse on fire. There is a utility building near the pile of refuse that belongs to Del's neighbor. The building catches fire from sparks carried by the wind and is destroyed.
Was Del negligent?
Neither Trudy nor Del exercised the ordinary care for safety that the law expects of a reasonable and prudent person. Trudy should have warned Ingrid of the slippery floor. Del shouldn't have burned trash on a windy day. Both would be liable for the damages caused by their negligence.
It should be noted that the test of negligence is not whether the defendant believes the conduct to be reasonable. It is whether a "reasonable and prudent person" would believe it to be reasonable. In a court case, the jury usually decides what the standard of care is and whether or not it has been met. Jury members must draw from their own experiences to determine what a reasonable person would do under the circumstances of the case.
The standard of care required of a defendant may be affected by who that defendant is. For example, a surgeon performing an operation is not judged by the reasonable and prudent person standard. The reasonable and prudent person is not ordinarily qualified to perform surgery. Rather, the surgeon would be judged by a reasonable and prudent standard for a surgeon.
The standard of care required of a defendant may also depend on who the plaintiff is, particularly regarding the care a property owner owes to persons who come on to his or her property. The care will depend on whether the person is a trespasser, licensee, or invitee.
Duties of a Property Owner
| Person Entering Property |
Relationship with Owner |
Duty of Owner to Person |
| Trespasser |
Enters without owner's permission. |
Not to intentionally create a hazard. Setting a booby trap for trespassers would be unlawful. |
| Invitee |
Enters with permission for the owner's benefit, e.g., a customer at a retail store. |
To warn of both concealed and obvious dangers. |
| Licensee |
Enters with permission of owner, e.g. a social guest. |
To warn of dangers or repair them. However, the owner is not responsible for concealed or unknown defects such as an improperly installed ceiling. |
Proximate Cause and Actual Damage
The breach of duty (or failure to meet a legal responsibility) must be the proximate cause of the alleged injury in order for there to be negligence. In other words, there must be a direct link between the breach of the defendant's duty and the injury suffered by the plaintiff. The question to be asked is, "But for" the act of the defendant (that is, if it weren't for the defendant's act or failure to act), would the plaintiff have suffered the injury? Consider the following situation:
SITUATION 24 An elderly woman goes to the hospital with a stomachache. A nurse takes her temperature and vital signs. Suddenly, the woman collapses. One hour later, she is pronounced dead of a heart attack.
Can the hospital be sued for medical malpractice because the heart attack occurred while she was in its care?
Probably not. There must be some link between the care or lack of care and the ultimate injury (in this case, death). It would be difficult to prove that the nurse's actions somehow caused the heart attack. In other words, the proximate cause of the heart attack was not the care provided by the nurse or hospital.
Therefore, the hospital would not be liable for medical malpractice.
The injury must also be foreseeable for the suit to be successful. Under the law, the performer of an act is liable for an injury only if it was a foreseeable consequence of the act. In other words, a defendant would not be held liable for a negligent act?even though it caused the injury?if no reasonable person could have foreseen such consequences. Consider the situation that follows:
SITUATION 25 Bill is negligently speeding down a busy street. His car collides with a pickup truck parked at the curb. The truck is loaded with dynamite for construction work. It explodes. Mary, walking on a nearby sidewalk, is seriously injured. Jane, sitting next to a window in a building a block away, is cut by flying glass. Alice, holding her baby several blocks away, is frightened by the explosion and drops the baby.
Bill's negligent act was obviously the cause in fact of all the injuries. Would he be held liable for the injuries to Mary? Jane? Alice's baby?
Bill would be legally responsible for Mary's injuries. It is foreseeable that a nearby pedestrian could be injured by an automobile collision. Bill may not be legally responsible for the injuries received by Jane and by Alice's baby. Such injuries to persons far removed from the scene of an accident would not appear foreseeable as the natural and probable consequence of the negligent act.
However, that would be an issue for a jury to decide (Adapted from Justice Andrews's dissenting opinion in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 /1928).
The final element required in order for the tort of negligence to be completed is actual damage. No matter how careless a person is, if no damage or injury results from that carelessness, then no tort has been committed.
STRICT LIABILITY
SITUATION 26 The Widget Company manufactures a product that self-cleans bathtubs. Homemakers across the country buy the cleaner. Unfortunately, the Widget Cleaner leaves a slick, invisible film on the tub surface. Many people slip and fall. Over 200,000 lawsuits are initiated. The company was careful in making the product.
Is it liable?
SITUATION 27 Ron purchases a bottle of soda pop. Before he can get the top off, it explodes. The caps on these bottles are defective. The cap hits him in the eye. He has a black eye for weeks.
Can he recover damages?
Many times people are injured not through the direct action of another but by a product that has a defect in its design or manufacture. A legal action taken to recover damages for such an injury is called a product liability suit.
In Georgia, an injured person may sue the manufacturer under the doctrine of strict liability. Under this doctrine, the defendant does not have to be negligent. In other words, the plaintiff does not need to prove that the manufacturer failed to perform a legal duty or use a reasonable standard of care. The plaintiff need only show that the manufacturer marketed a product that caused injuries.
Therefore, in situation 26, the company's care in making the product and lack of intent to harm would not protect the company from liability. Those injured could sue individually or together in a class action. They should be able to collect damages.
The strict liability principle recognizes the consumer's right not to be hurt by a product that is used in the manner intended. Once a product is shown to be defective, manufacturers are expected to provide notice of defect and recall the product. A person who disregards such a notice may not have a strict liability claim.
In some states, the seller can be sued under strict liability, but that is not true in Georgia. The seller is protected because it can be difficult to see the defect in a product just by looking at it. However, sellers can be found liable for negligence for failing to detect or warn of a known danger.
In situation 27, Ron clearly could sue the cap manufacturer under strict liability, but would the grocer be liable? Was he negligent? Would it make a difference if he had seen bottles with these caps explode before or if it were a new kind of soda pop that the store started carrying?
The doctrine of strict liability benefits consumers by forcing manufacturers to do more research and set higher safety standards for their products. The costs of research (and lawsuits) are passed on to consumers in the form of higher prices.
Defenses to Negligence and Strict Liability
If a person is sued for money damages arising from negligence, there are two main defenses available. These defenses may prevent the plaintiff from recovering money damages, or they may reduce the amount of money awarded for damages. These defenses are (1) assumption of the risk and (2) comparative (or contributory) negligence.
What if the defendant can show that the plaintiff knew about the danger but proceeded to act anyway? The plaintiff would not be able to recover damages for his or her injuries. This defense is called assumption of the risk. To be used, the risk must be a foreseeable one. Suppose Mitch goes to a baseball game and is hit by a ball fouled into the stands. The chance of that happening is foreseeable. He would have assumed the risk. However, what if Mitch were injured by a hitter throwing a bat into the stands after striking out? That risk might not be foreseeable. The batter may be liable.
Sometimes an injury is caused by the negligence of both parties. Under the rule of comparative negligence, each party is assigned a percentage of the total negligence (100 percent). The plaintiff can only recover money damages if his or her percentage of negligence is less than 50 percent.
To determine the amount of an award at trial, the jury would first determine how much to give the plaintiff for his or her injury. The amount would then be reduced by the plaintiff's percentage of fault. In figure 103, let's say the jury awarded Whitney $10,000 for his injuries but found that he was 20 percent negligent. The total award would be $8,000 ($10,000 minus 20 percent).
In Georgia, the rule of comparative negligence has replaced the harsher rule of contributory negligence. However, contributory negligence is still used in other states. Under this harsher rule, the plaintiff could not recover any damages if he or she had been at all negligent.
Defenses to Claims of Strict Liability
In a strict liability case, the defendant would try to show that the product was not the cause of the damages or that there were no damages. Misuse of the product might also be claimed, although courts have said that some misuse should be anticipated.
Abusive Lawsuits
The Georgia legislature created a new tort that may be used as a defense by plaintiffs or defendants. It is a tort for abuse of the judicial process. It occurs when a party brings a claim or asserts a defense with malice and without basis for it in law or fact.
SITUATION 28 Ben is driving along the highway, not paying attention. He rearends Kay's vehicle. She sues for damages. Ben claims he wasn't negligent and the accident was Kay's fault, even though he knows that's not true.
Ben may be liable under this legal principle. The defense he asserted had no basis in fact. What if his defense was that Kay had a legal duty to look in her rearview mirror every few seconds to avoid the possibility of Ben's negligence? That defense would have no basis in law. There is no such legal duty.
PROTECTION AGAINST LAWSUITS
How can you protect yourself from being sued for a tort? The amount of money damages asked for can be devastating?in the thousands of dollars. Your best protection is to exercise care in your daily activities. The law is not hard to follow. It simply requires a person to behave so as not to cause injury to the person or property of another.
However, you may further protect yourself from the consequences of a negligent act with insurance coverage. The two most common types are homeowner and automobile coverage. Insurance provides a fund of money to be used if a negligent act by the insured person causes damages. Most insurance policies do not provide coverage for intentional torts that result in harm to a person or property.
* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.
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