The Elements of Negligence

1. The Elements of Negligence Business and Personal Law August 31, 2012

2. OBJECTIVES: • As a result of this class, students will be better able to: • Understand the basic difference between civil and criminal laws. • Understand the basic elements of negligence and defenses thereto. • Understand the factors that courts consider when determining whether a duty existed and whether it was breached.

3. Introduction • Today’s class session will introduce you to torts and the concept of negligence • We will spend a number of class sessions talking about criminal wrongs, which are prosecuted by the state on behalf of particular people and society at large…negligence is usually a civil wrong prosecuted by the individual wronged.

4. TORTS • With torts, we are dealing instead with civil wrongs committed against individuals. • With civil wrongs, the individual harmed is almost always going to be the plaintiff, though family members of injured (often deceased) persons may also sue on behalf of loved ones.

5. TORTS • There is not a prosecutor, like there is with criminal suits. Rather, the harmed individual or a family member brings a civil suit.

6. There are generally three different types of torts • Negligence • Intentional torts • Strict Liability Today we are only going to focus on negligence, which is an unintentional tort. Other types of torts will be discussed in future classes.

7. For Example: • Tony, an 18-year-old high school student, is listening to smooth jazz (yes, smooth jazz) on his iPod while driving. Tony doesn’t like the track he is listening to, and looks away from the road to find something smoother. He fails to see the car in front of him stop and crashes into it. The woman in the car suffers a broken leg and sues Tony to collect for her injuries.

8. Question for you….. • "If the woman wants to be compensated for her injuries, will she file a criminal or civil lawsuit?" • Answer: Civil. Criminal suits are brought by the state/prosecutor, while civil suits are brought by individuals against someone who they think has wronged them

9. "Who is the plaintiff?" • Answer: The injured woman

10. Who is the defendant? • Answer: Tony

11. What can the woman recover? • Answer: Money to compensate her for her injuries. There is no jail time at stake in civil suits

12. What must she prove? • That Tony was negligent in driving, under the four elements of negligence, to be discussed shortly, by a preponderance Preponderanceof the evidence requires greater than 50 percent likelihood of causation. So, 51 percent would work of the evidence

13. Elements of Negligence • Duty: The defendant owed the plaintiff a duty of care. The duty of care owed is determined by a reasonable person standard. A reasonable person would consider: (1) the burden of taking precautions, (2) the likelihood of harm, and (3) the seriousness of the harm that might be caused.

14. Elements of Negligence • Breach: The defendant’s conduct violated that duty (the defendant did not act reasonably).

15. Elements of Negligence • Causation: The defendant’s conduct caused the plaintiff ’s harm: • i. Cause in fact = actual cause • ii. Proximate cause = harm was foreseeable

16. Elements of Negligence • Damages: The plaintiff suffered actual damages • i. Tort law is concerned with restoring the plaintiff to his or her position, had the injury not occurred.

17. Question for you…. • What was Tony’sduty to the woman? • Answer: To drive in a reasonable manner, which would include being alert and not listening to music with headphones

18. Question for you…. • Did Tony breach this duty? • Answer: Yes. Tony breached this duty by driving while listening to an iPod with headphones and by looking away to fiddle with the music

19. Question for you…. • Did the Tony’s conduct cause the woman’s injuries • Yes. The harm would likely not have occurred if Tony had been paying attention to the road, and not fumbling with his iPod, and the harm was foreseeable (i.e., it is foreseeable that if you look away from the road you will hit the person in front of you).

20. Question for you…. • Did the woman suffer actual damages? • Yes. Medical costs, potential lost wages, pain, and suffering

21. Defenses to a Negligence Action • Contributory liability – Plaintiff ’s failure to exercise reasonable care may offset some or all of a defendant’s liability. • For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. • Contributory negligence is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely. • Assumption of risk – A plaintiff who formally accepts a particular risk of harm may be prevented from recovering for related negligent acts by a defendant. • For example, if you see a sign that says “do not touch – hot” but you touch the object anyway and burn your hand, you may be found to have “assumed the risk.”  This would prevent you from recovering any money.

22. Your Turn!!!!

23. Closure • As a result of this class, YOU should be able to: Apply the elements of negligence to everyday factual situations. • Become better advocates by formulating and articulate arguments. • Avoid situations in which their actions could give rise to liability

24. EXIT TICKET • Today’s class shows that there is no bright line rule for determining negligence and that careless or reckless conduct can give rise to substantial liability. • Do you think that the legal system recognizes a flexible standard of conduct based on what a reasonable person would do in like situations?

25. http://www.youtube.com/watch?v=TysjNDTWEBc&safety_mode=true&persist_safety_mode=1&safe=activehttp://www.youtube.com/watch?v=TysjNDTWEBc&safety_mode=true&persist_safety_mode=1&safe=active • http://www.youtube.com/watch?v=qoINTDFosCY&safety_mode=true&persist_safety_mode=1&safe=active

26. The Elements of NegligencePART II Business and Personal Law September 17, 2013

27. Warm Up • What are Kramer’s best arguments for proving that Java City had a duty to exercise reasonable care? • What are Java City’s best arguments for proving that they did exercise due care? • Think about both sides of the case. As a jury member, which way would you likely vote?

28. Meet Bobby Williams (2002)

29. Meet Bobby Williams • 26 years old • Construction • $34,000 a year (expects a raise) • Athlete • Adventure Travel • Fluent in Spanish • Engaged • $125,000 a year • Getting Married • Starting a Family

30. Meet Bobby Williams (2002) • ? • January 2005 ? JAN2005 Handout #1 (Bobby’s life January 2002) Create a List of what you envision Bobby’s life being like in January 2005

31. MEET BILLY AND BRENDAN

32. REMEMBER!!! • Everybody has a duty to act as a reasonable person would under the circumstances. • Was that duty breached? • Was it reasonable to throw snowballs at cars passing on an icy road?

33. REMEMBER!!! • When you determine that the defendants acted negligently – that they had a duty and breached that duty you then have to determine if they need to pay for that negligence. Are there any damages…

34. Bobby’s life 2005 – the year the case goes to trial:

35. Bobby’s life 2005 – the year the case goes to trial: • Fiancée Broke UP • Moved in with his parents • Ramps installed • Not working • Depressed • No longer plays sports

36. Let’s Do The Math… ?Bobby’s Real Life 2005 Bobby’s life 2005 if the accident had never happened. Bobby’s Life 2005 if the accident never happened Bobby’s life 2005 if the accident had never happened. List the Differences? Bobby’s life 2005 if the accident had never happened. NEED A VOLUNTEER

37. Who remembers what the goal of a civil suit is? • Answer:To put the victim in the position they would have been in had the accident never occurred. • Not the position they were in before the accident, but the position they would be in today, if the accident had never occurred… • Which differences deserve compensation?

38. Do any of the items you felt deserved compensation, deserve full compensation? • Plaintiff has a duty to mitigate. • Consequences that Plaintiff could have avoided are not recoverable

39. Ask the questions....... • Injury to property • Cost to repair • Damage to his car. • Injury to person • Reasonably incurred medical expenses • Hospitalization • Surgery • Physical therapy • Medication • counseling

40. Ask the questions....... • Lost earning capacity • $34,000 – (whatever he should be able to learn in a new job) = • Lost earning capacity of the girl? • Pain and suffering (including mental) • actual pain itself • negative emotional reaction to pain • Depression

41. Ask the questions....... • Humiliation resulting from inj. • Loss of enjoyment • Love loss • Ability to have a family? • Activities • Buy new equipment to do those activities

42. Finally… • ** No punitive damages in negligence claim (in civil suit, punitive damages are only awarded if there is maliciousness)

43. Finally… • if you were the jury, you would add them up and that would be the damages - the amount that those boys, or their parents if they are under 18, would have to pay Bobby. (For the parents, it might come out of Home Owner’s Insurance. For the 18 year old – they might garnish his wages…)