Assignment:
Current Article Analysis:
Instructions:
Choose a current article related to this week's material. Review and analyze the article. Explain why it is relevant to the class materials and include a lesson learned (even if it is what not to do) from the article. Need Assignment Help?
This assignment should be written in APA style and should include the following.
1. Two pages in length (not including the title page and reference page)
2. Double-spaced
3. 12-point font
All papers will automatically be submitted to Turnitin.
NEGLIGENCE
Recognize conduct that is classified as negligent and identify any potential defenses.
Tort law also applies when one party fails to act reasonably and harm occurs, even though that party did not intend to cause harm. The negligent party is liable for any injuries or damages suffered by another party as a result of his unreasonable conduct. This category of tort is called negligence. Recall from the first section of this chapter that the primary difference between intentional torts and negligence is the mind-set of the tortfeasor. When tortfeasor causes harm to an injured party by creating an unreasonable risk of harm, the law provides the injured party a remedy regardless of the tortfeasor's intent. The Restatements also recognize certain defenses that may be asserted in a negligence case.
Elements of Negligence:
The law requires that specific elements be proved in order to recover in a lawsuit against a tortfeasor for negligence. The injured party must prove five fundamental elements by answering certain questions about the conduct in question:
1. Duty: Did the tortfeasor owe a duty of care to the injured party?
2. Breach of duty: Did the tortfeasor fail to exercise reasonable care?
3. Cause in fact: Except for the breach of duty by the tortfeasor, would the injured party have suffered damages?
4. Proximate (legal) cause: Was there a legally recognized and close-in-proximity link between the breach of duty and the damages suffered by the injured party?
5. Actual damages: Did the injured party suffer some physical harm that resulted in identifiable losses?
Duty:
The initial consideration in a negligence analysis is whether or not the tortfeasor owed the injured party a legalduty. The law imposes a general duty on all parties to act reasonably and not to impart unreasonable risk to others. In addition to having this general duty, some parties owe a special (heightened) duty of conduct to avoid liability for negligence.
General Duty of Reasonable Conduct:
The law imposes a general duty on every party to act as a reasonably prudent person would under the circumstances. That is, everyone owes a duty to everyone else to act in a manner that does not impose unreasonable risk. The reasonably prudent person standard emphasizes that the conduct must be objectively reasonable. This means that at trial a fact finder (such as the jury) could conclude that a reasonably prudent person in the same circumstances should have realized that certain conduct would be risky or harmful to another person. In general, the scope of that duty is defined by foreseeability. In tort law, the term person in the reasonably prudent person standard is meant to be a generic term. The scope of duty is frequently defined by a particular industry or occupation. For example, the level of duty for a physician is defined by what a reasonably prudent physician would have done under the circumstances. It is important to understand that duty is an element that expands and contracts based upon whether or not it was foreseeable that the conduct in question would cause an unreasonable risk of harm. For example, Cain is a guest on a shock-host television show. The owners of the show arrange to have Abel surprise Cain on the show with an embarrassing secret. Cain is embarrassed and runs off the stage, and no further incident ensues. Three days later, Abel persists in calling Cain and harassing him about this secret. Cain then shoots and kills Abel later that afternoon. Cain is sentenced to a life term, so Abel's heirs sue the owners of the shock-host television show for negligence, claiming they owed Abel a duty to protect him from Cain. In this case, a court will likely rule that due to the time period between the show and the shooting (three days) and the fact that no incident occurred on the show or immediately thereafter, the duty owed to Abel ended when the show ended and did not extend to the time of the incident. This is primarily because it was not reasonably foreseeable under the factual circumstances of this case that Cain would act in such a rash manner then or thereafter.
No General Duty to Act:
The duty of care, discussed above, does not include a general duty to act or to rescue another. Tort law allocates liability based on a fundamental difference between some act by one party that harms or endangers another party, known as misfeasance, and the failure to act or intervene in a certain situation, known as nonfeasance. While injured parties may generally recover for misfeasance, injured parties may not hold a defendant liable for failing to act unless the parties had a special relationship to each other. Special relationships that are set out in the Restatements include those of a common carrier (such as a bus company) to its passengers, innkeepers to guests, employers to employees, a school to students, and a landlord to tenants.20 One important special relationship of interest to business owners and managers is a business's duty to warn and assist any business visitors or patrons in regard to potential danger or harm (such as a slippery floor) on business premises. Therefore, businesses have a special relationship with their visitors and patrons that would allow recovery even in a case of nonfeasance.
Landowners:
Landowners owe a general duty to parties off the land from any unreasonable risks to them caused by something on the land. Courts use a reasonableness standard to determine the point at which the landowner should have acted. For example, the owner of GreenAcre plants several trees on the edge of his property, which is adjacent to a busy suburban street. One month later, one tree is dead, with no green vegetation and evidence of decaying bark and cracks in the roots. Eventually, the tree falls onto the road and injures a passerby. In this instance, a court may find that the landowner had a duty to inspect and remove the tree because it was foreseeable that the dead tree would be a risk to passersby if it fell.
Landowners also owe a special duty to certain parties based on categories spelled out in the Restatements. It is important to understand that in a situation where a tenant is in possession of leased space, the tenant has the same special duties and level of liability that is imposed on landowners. Once a landlord/owner has given possession of the property to the tenant, the landlord is generally not held liable except for certain common areas (e.g., common stairwells, restrooms, or lobby). The expected level of care varies by category. Table 9.2 sets out the categories of special relationship duties owed by landowners to licensees, invitees, and trespassers.