Tort Law Negligence by Amie Gibbons

Tort Law Negligence by Amie Gibbons

(This is a repost from a series I did on law basics for the layman.  This is all just what we call “black letter law,” as in simplified and pretty set concepts, and, as always, is not to be taken as legal advice.)

Basic principle: No matter what, no matter where, no matter who, anyone can sue anyone else for anything. (Bonus points if you can name what I’m misquoting   This doesn’t mean it will stick in court and certainly doesn’t mean they’ll win, but they can sue for anything and make you spend beaucoup bucks on an attorney to defend your ass.

Negligence law is under what we call torts. No, it’s not a cake, a tort is a legal term for when someone harms someone else.  So when someone is suing you for some harm it’s usually under torts.  Those are split into intentional, negligence and strict liability (some consider strict liability as a subset of negligence but we’re not going to address it here).

Stuff like a car accident, lighting property on fire with your candles, sitting on a cake in another person’s expensive dress, and dropping a piano on someone’s head are, again we use the word usually, under negligence.  It’s when you harm someone/their property without meaning to do harm basically.

In a lawsuit there are things we call elements of the cause of action, the thing the person is suing about.  And when they sue, the person has to show all those elements, meaning show that if they are telling the truth about what happened, the “tortfeasor” is liable for the damage.

The elements of negligence are duty, breach, causation, and injury.

1) Duty is, as you can probably infer, the duty someone has to look out for another. Doctors have a duty to their patients, parents to watch out for their kids, everyday people driving to look out for others on the road. There’s different standards of care that people can owe to each other depending on the relationship. The standard for average dealings with people on the street without a special relationship is that of the “reasonable person.”

2) Breach is when someone fails in this duty. The doctor did not follow up with the patient after surgery as quickly or often as the industry std said he should.  The parent left the child alone for a few days.  The person driving the car looked down at her phone to check a text, thus taking her eyes off the road.

3) Causation is the tricky part. It’s a two parter. The first part’s easy to get through: the tortfeasor has to be the but-for cause of the injury, as in but-for the person driving, the person walking would not have the broken leg.  Or but-for the doctor performing surgery to get the tumor out, the patient would still be alive that day.

The second part is where is gets messy, it’s proximate cause. Also known as the “direct cause.” It means that the tortfeasor does a direct action that sets in motion an unbroken chain of events leading to the injury with no interference to break the chain. It gets more complicated such as multiple events joined together to make the injury happen, any one of which taken away would have prevented the injury, but the general idea is one cause leads to a chain of events that leads to the injury without something interfering.  (This is a really, really simplified explanation.  Lawyers have a lot of fun screwing around with this element.)

4) Which brings us to our last element, injury. Someone’s dead, paralyzed, pissed about their ruined property, ect…

And my tort professor pounded this into our heads every day of class:

No Injury, No Damages!

Which should mean if a person comes out of you almost hitting them with your car or a piano perfectly fine then you’re safe, but no, because there’s emotional damages and it goes from there, until you can be sued for making someone cry. Doesn’t mean they’ll win in court, but they sure as hell can sue.

(And don’t forget to check out my latest novel about silly psychic Ariana Ryder, Psycho (and Psychic) Games.)


93 thoughts on “Tort Law Negligence by Amie Gibbons

  1. We do love those wild and improbable Rube Goldberg chains of events leading to the tortious finale.

    1. “Welcome to the Tortoise Final! Enjoy your drinks.. slowly.. The favorite today is Sloepoke Rodreguiz (who does NOT “pack a gonne”). The longshot is, believe it or don’t, Field Artillery. And now a word from this year’s sponsors, the Teamsters, who are in in this for the.. long haul. Hey, I couldn’t NOT make that joke.”

    2. Reality can be so much stranger than fiction – especially in the proximate cause cases and/or foreseeablity cases. For example, see, United Novelty Co. v. Daniels, 42 So.2d 395 (Miss. 1949) (gasoline soaked rat allegedly ran from machine being cleaned to heater with open flame and back, setting off explosion).

      1. Or the thing I mentioned in the Rocket Law comments:

        Guy flies a plane til it’s out of fuel. Successfully deadsticks it onto an Interstate, coasts it up an exit ramp and into a service station’s fuel island.

        Somebody driving down the Interstate looks around, sees an *airplane* parked at a *fuel pump,* and stares until he wrecks his car.

        He sues the airplane manufacturer, who clearly should’ve had some design feature to prevent all this.

        1. I was wondering why the gas pump had a warning not to use the gas in aircraft engines.

          1. Of course, there are ways . . . All you need is the STC (Supplemental Type Certificate) from the FAA that allows it.

      2. I once reported on a wildfire that had been started by “a flaming grasshopper.” One, I am not sure how they knew that, and two, that sounds like a drink.

  2. But wait! What about my feelz??? You made me feel threatened, disrespected, diminished and offended. Isn’t that worth Big Bukz?
    And that’s just from looking at your face!

          1. Of course, for some of us our face may be scary/spooky but the rest of us is even worse. 😈 😈 😈 😈

  3. So, if I back my car out of my drive and hit an oncoming vehicle there would be a case for negligence because I have a duty to look into my rear view mirror before giving it the gas — but if, while backing into my drive I hit a car there is no negligence for failing to look because I have no duty to check my mirror before entering that parking space I have no cause to believe anybody other than myself would presume to park there?

      1. Minotaur, or minor tort?
        Talk about being on the horns of a dilemma!
        I get those confused all the time.

        1. Minor tort(e) is small confection, suitable for children.
          I’m alright with children, at least as long they don’t have sticky candy to press into my fur/hair. Dilemmas are more thorny than horny and the horns of an enema are not a thing for public discourse, of course.

          1. Daddy! Daddy! Can I pet the cute purple minor tort?

            I want to hold him, and pet him….

            Oooo. You don’t really eat people, do you Mr. Minor Tort?

            Yes Virginia, Minor Torts do eat people, at least in the United States.

    1. Nice try but you are responsible for looking where your car goes, whether or not there should be someone in your spot. After all, the could be things there you need to avoid other than cars – like children, occupied baby/child seats, family pets, etc. It is never reasonable to not look where you are going.

      Now, if a child darts out in front of your car and there was no way to avoid the child (and there is an entire class of these cases), typically you will manage to avoid liability under a negligence type theory provided you are driving at a safe speed, obeying the rules of the road, etc. (and, in some cases, do not have special knowledge that the area has a high volume of children that would imply a higher duty of care).

      1. But as a single person living by myself, anybody parked in my drive is ipso facto guilty of trespassing and ought not be able derive benefit from an illegal act. I have no duty to check the driveway is clear because nobody else has any right to be there.

        1. “Anybody parked in my drive is ipso facto guilty of trespassing and ought not be able derive benefit from an illegal act”

          You would think so, but I’ve read about burglars successfully suing a homeowner after being injured during an attempted robbery. Apparently the homeowner had a duty to keep those steps in good repair just in case someone trying to steal his stuff should need to run down them at high speed.

          1. The burglar suing after getting hit by a shotgun trap is a classic, actually. Dangerous conditions on land are a strict liability type law suit, so the trespasser often wins these.

            1. Nod.

              Part of the problem with the “shot-gun traps” were that they could harm a fairly innocent trespasser instead of a true burglar.

            2. I’m not too concerned about trespassers suing after being harmed by deliberate, or even negligent dangers. What really sticks in my craw are the ones who climb a head-high or higher fence clearly labeled, “No Trespassing” as well as, “Beware of Dog” and then sue for being bitten by said dog.

        2. There is also the dangerous assumption that, just because you’d expect only trespassers to be on your property, there could be people legally there, who you aren’t expecting: police officers, emergency personnel, utility workers are all people who come to mind.

          1. Delivery vehicles….. which BTW you have issued an invitation to be there at unexpected times.

  4. If you ain’t exhibiting the symptoms of PTSD as a result, you ain’t harmed emotionally. And if you’re emotionally disturbed by something any reasonable person would shrug off, you were already mentally defective, not the responsibility of the defendant.
    No case. Plaintiff responsible for all court costs. Next please!

      1. I like logic. It keeps me gainfully employed. Very hard to write code that works without logic.

    1. Making the plaintiff responsible for defendant’s costs if plaintiff could not prove their case was one of the best tort reforms ever.

      (Even if it did result in even more paperwork flying between law offices.)

    2. You need to be careful here as there is an exception which may be in play based on the injured party’s pre-existing state. The eggshell skull rule (or thin skull rule or you take your victim as you find him rule of the common law) is a well-established legal doctrine that frailty of the injured person is not a defense in a tort case. So, if you hit someone with brittle bones, you are responsible for their full pain and suffering, medical expenses, etc. even though they were predisposed to injury. See, e.g., Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (Wisc.1891) (schoolboy who kicked leg of another boy (who thereafter lost his leg) responsible for full damages from loss of leg, despite them not being reasonably foreseeable).

  5. A lady I know has been served for a million-dollar lawsuit because she sold a house where the toilet backed up. I wish I were joking. The other party is claiming emotional damages, lost work, the whole lot. It had been in mediation but the other party didn’t accept (probably because it was unfavorable.) I gather the lawsuit is because there wasn’t a disclosure about the subject when the house was sold.

    The worst part is that the lady I know has several kids and a decently paid-down house, and if this lawsuit advances, she will be out tens of thousands of dollars if she wins, and of course, if she loses, her finances will be in ruins. If she settles ahead of the lawsuit (which appears to be what the other party really wants), she will also be out tens of thousands of dollars. Her only hope is for a judge to look at the lawsuit and say that it’s ridiculous and to throw it out—her finances are ruined with any other path. (I didn’t quite catch what there was about insurance with the legal fees—apparently, that only applied to mediation, and once that failed, she’s on the hook for further legal fees.)

    It’s mind-boggling to realize that someone with a grudge can ruin you whether they succeed in a lawsuit or fail.

    1. The expression I have heard is “lawfare”, where the process is the punishment in and of itself. Used a lot by Human Rights Commissions up here in the Great White North.

      1. Also used a lot by Animal Rights groups, other “activist” groups, and a favorite of numerous government agencies.

        Basically anybody who is more interested in punishing you than either the rule of law or winning.

        1. You left out Michael Mann, who — while certainly fit to stand within “other activists” — has earned distinction all his own.

    2. … was she the previous owner of the house, or just the agent for the previous owner…?

      1. She was the previous owner. And when the toilet backs up, you know what I do? I see if I can fix it myself, and then if that doesn’t work, I call in a professional to fix it. LIKE AN ADULT.

        1. Indeed. I don’t expect such a thing to completely eliminate “lawfare”, but I *really* wish this were a part of the American legal tradition. Every time someone files a lawsuit, they should have the thought in the back of their mind “Am I prepared to pay for *everything* if I lose?”

          1. I’ve been thinking about that, and I fear it could, itself, backfire in its intention.

            Let’s say that a store has an unsafe condition, and it causes someone to fall and get hurt, but when they put in a claim, the store tells them to get lost. They sue, but the store chain pulls out it’s whole cadre of lawyers and wins the lawsuit, so now the plaintiff owes some astronomical amount because they weren’t able to field a good enough team to win.

            1. Gingrich had a nice variant on this back in his heyday. Loser pays winner *the lower of the two legal bills* with contingency-fee lawyers required to bill for their time and waive the fee for purposes of getting the legal bill on the record. If the case is clear-cut and you minimize your own legal fees, worst case you’re out twice that (well, plus court costs.) If that’s not possible … well, at least you can watch your own legal fees and estimate worst case scenario.

            2. The “Loser Pays” rule isn’t a new one, though, and there may even be variants throughout the Commonwealth. To the degree that this is a danger, we should be able to determine it by examining how the rule has played out in these other countries.

              Granted, this doesn’t take into account what Americans might do in these circumstances — Americans can do the darnedest things with rules! — but it’s a good starting place for looking at what might happen.

            3. While “loser-pays” tort reform could, indeed, lead to cases like you describe, where someone refrains from bringing a perfectly valid suit because they’re afraid of losing, I am still in favor of “loser-pays” tort reform anyway. Why? Because I think it would be far better than what we have now. Which is a sad commentary on the situation we have now.

              1. It is generally prudent to not let the perfect be enemy of the good, and clinging to the devil we know while rejecting the devil unknown still leaves you clinging to the devil.

                It serves the public interest to change things around every so often, if only to force the corrupt to develop new dodges.

              2. I just brought it up to recognize the possibility, and see if there were any suggestions for dealing with that. There are probably several possible methods that would prevent such abuse from becoming rampant.

                1. Trial by combat comes to mind. It favors the strong, the fast, and the smart. So innocent weak, slow, stupid people would be disadvantaged. On the other hand, they wouldn’t be victimized by their opponent, their lawyer, or the court system itself.

                  1. Holmgang. Trial by combat as practiced by early Norse. Naturally, to make it fair, weak opponents were allowed to hire champions. So professional holmgang champions – biggest, baddest guys around – made a living at it; and adversaries with the biggest pockets to hire the biggest champions generally won.

                    Kinda like our current legal system…

              3. So tie it to a “Free speech under the First Amendment includes not being able to use the government court system to sue people for their bad opinion of you.”

                That would allow enough of these sorts of victims to influence the marketplace via bad reviews etc.

          2. Actually, I’m more in favor of “loser’s LAWYER pays” since one of his duties to the court is or should be keeping these things down by showing the client they don’t have a leg to stand on.

            If the client wants to act as his own lawyer, there’s an old saying about that…..

            1. I actually like that one, because there’s a lot of lawyers out there who offer “no fees unless we win”, which in some ways make sense, but in others…it gives them a reputation that they are out to win big jackpot awards, and will throw anything to the bench to see what sticks….

    3. This is the sort of thing for which an umbrella insurance policy can pay off handsomely. It is also the sort of thing where a motion to dismiss (and/or for summary judgment) can really keep the costs down for the defendant. Your friend might also want to check if there is a “vexatious litigant” statute which might apply in the applicable jurisdiction.

  6. Thank you for the article!
    As scary as it was, it also puts some things in perspective.

  7. The closed case claims studies, where experts looked at closed malpractice claims, show that courts have a 30% routine failure rate in either direction. 30% of fault cases were wrong based on science, 30% of defense verdicts were wrong. Do we have any other system with a 30% failure rate? The study also showed that even experts get it wrong if they know that there was a bad outcome. Turns out that “no harm, no foul” is a real rule. Conversely if there is a severe outcome the “stuff happens” defense may not work, even if correct. trial by combat may be just as effective. BTW- Sally Yates at least wrote a memo that says if a corporation commits a tort at least one real person should go to jail. Never happens since Judges tend to get their start by representing corporations.

    1. Do we have any other system with a 30% failure rate?

      The MSM failure rate would have to improve greatly to achieve such a standard of performance.

      Turns out that “no harm, no foul” is a real rule.

      If no damages were suffered, it is difficult to assess damages to restoree the plaintiff whole to status quo ante..

      Sally Yates at least wrote a memo that says if a corporation commits a tort at least one real person should go to jail.

      It is difficult (albeit – Eric Holder – not impossible) to conceive of a less persuasive appeal to authority.

      Never happens since Judges tend to get their start by representing corporations.

      Assertion of facts not in evidence. Further, reaches a conclusion not supported by the claim; plenty of people detest their prior employers and take opportunities to repay in kind.

      1. Just a random thought about “If a corporation commits a tort, at least one real person should go to jail”: isn’t tort strictly a function of civil law, and thus, has nothing to do with putting people in jail? If so, then how in the world should someone in a corporation go to jail for a corporate tort, when if that same person were to commit a tort personally, there would be no jail time?

        1. Valid point. It seems likely that such jail time would be served by lower level functionaries fingered as “implementing policy improperly” rather than higher level managers in charge of setting policy. That is how it works with the mafia, right?

      2. “Never happens since Judges tend to get their start by representing corporations.”

        This is just prejudice, maybe with a side order of confirmation bias.

        When I left the legal field, the Presiding Judge for Pima County had come out of a Probate Law firm, several of the other judges came up through Family Law, and a fair amount had backgrounds in Criminal Law.

        Corporate lawyers can make more money staying on the bar rather than moving to the bench.

        The main flaw in Yates proposal is just because someone is “guilty” of a tort it doesn’t mean that they committed a crime, let alone a crime that can be proved beyond a reasonable doubt, or requires jail time rather than probation. Civil and criminal law have different levels and burdens of proof.

  8. “no harm, no foul” related to experts who were reviewing the case. These were cases that they had already said were malpractice, the same facts were sent back with a changed outcome/different name. The study was to see if the concept of malpractice/tort was valid. The null hypothesis was that experts would say certain acts were malpractice/wrong no matter what. Turned out people did not see it as wrong if it turned out ok.
    Sally Yates- the point was “even a blind hog can find an acorn occasionally”. If even she sees the point it may be valid. If no one goes to jail the corporation just views fines as the cost of doing business.
    Lawyers who hate corporations/banks/etc are called plaintiff lawyers. Successful plaintiff lawyers can not afford the pay cut. Judges get their start in most states by being known to the party in power. This tends to come from large, politically connected law firms. Large politically connected law firms represent large firms who need political connections. See who is on the Judicial nominating committee in most states.

    1. The “Reply Button” is your friend! It is provided for your convenience; use it and impress others with your mad intenetz skilz!

      Referring to a purported study without indication that it is a reference does not constitute an ex post facto point, especially when that point had already been made in the original post.

      Please do not insult blind hogs by such comparison. What Sally Yates found was a toad turd, not an acorn.

      Chains of unsupported claims do not a fact make.

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