Negligence United States tort law

1 negligence

1.1 duty of reasonable care

1.1.1 duty owed invitee

1.1.1.1 duty owed public invitee
1.1.1.2 duty owed business invitee


1.1.2 duty owed licensee
1.1.3 duty owed undiscovered trespasser
1.1.4 duty owed constant or known trespasser
1.1.5 duty owed child trespassers
1.1.6 duty rescue

1.1.6.1 non-professional rescuer
1.1.6.2 professional rescuer




1.2 breach

1.2.1 violation of statute

1.2.1.1 excuse


1.2.2 violation of custom
1.2.3 res ipsa loquitur

negligence

amongst unintentional torts 1 finds negligence being common source of common law. americans under impression people can sue type of negligence, untrue in jurisdictions (partly because negligence 1 of few torts ordinary people can , obtain liability insurance.) form of extracontractual liability based upon failure comply duty of care of reasonable person, failure actual cause , proximate cause of damages. is, tortfeasor s act or omission, damages plaintiff not have been incurred, , damages reasonably foreseeable consequence of tortious conduct.

some jurisdictions recognize 1 or more designations less actual intentional wrongdoing, more egregious mere negligence, such wanton , “reckless” or “despicable conduct. finding in states defendant s conduct wanton, “reckless” or “despicable”, rather merely negligent, can significant because defenses, such contributory negligence, unavailable when such conduct cause of damages.

duty of reasonable care

duty owed invitee

duty owed public invitee

duty owed business invitee

duty owed licensee

duty owed undiscovered trespasser

duty owed constant or known trespasser

duty owed child trespassers

duty rescue

non-professional rescuer

professional rescuer


macpherson v. buick motor co.
martin v. herzog, 228 n y. 164, 126 n.e. 814 (1920)
tedla v. ellman, 280 n.y. 124, 19 n.e. 2d 987, (1939) on negligence per se, or violation of duty under statute
seong sil kim v. new york city transit authority, duty of care person may have been attempting suicide.

breach

breach ordinarily established showing defendant failed exercise reasonable care. courts use terms ordinary care or prudent care instead. conduct typically considered unreasonable when disadvantages outweigh advantages. judge learned hand famously reduced algebraic form in united states v. carroll towing co.:

b
<
p
l


{\displaystyle b<pl}

this means if burden of exercising more care less probability of damage or harm multiplied severity of expected loss, , person fails undertake burden, not exercising reasonable care , breaching duty (assuming has one). in other words, burden of prevention less probability injury occur multiplied gravity of harm/injury. under formula, duty changes circumstances change—if cost of prevention increases, duty prevent decreases; if likelihood of damage or severity of potential damage increases, duty prevent increases.

there other ways of establishing breach, well.

united states v. carroll towing co., 159 f.2d 169 (2d. cir. 1947)

violation of statute

this known negligence per se. breach can shown in jurisdictions if defendant violates statute pertains safety , purpose of prevent result of case. note alternative way show breach. violation of statute not have occurred in every case. therefore, because cannot shown not mean there has been no breach. if attempted shown fails, there may other bases of breach.

excuse

occasionally, there valid excuse violating safety statute, namely when safer or arguably safer violate comply it. happened in tedla v. ellman. statute required pedestrians using roadways walk against traffic. @ time in question, there heavy traffic going opposite direction plaintiff. therefore, plaintiff have had walk past many more vehicles, arguably increasing chances of being hit. so, plaintiff walked traffic on other side of road, violating statute. there far fewer vehicles travelling direction, plaintiff hit anyway. though purpose of statute prevent precisely result occurred, plaintiff nonetheless prevailed because of valid excuse violating statute, namely safer not comply.

violation of custom

breach can shown in jurisdictions if defendant violates custom widespread , reasonable. example, ten percent of industry thing, not considered custom purposes of breach in negligence. alternatively, if 90 percent of industry thing, thing inherently unsafe, , upholding custom cost-saving measure, violation of custom (doing safer) not constitute breach. violation of statute, alternative way show breach. therefore, because cannot shown, or attempted shown fails, not mean there has been no breach. there may other ways of showing breach.

trimarco v. klein, 56 n.y.2d 98, 436 n.e.2d 502 (1982), decided customary conduct not conclusive (although evidence) of reasonable.

res ipsa loquitur

this latin phrase means thing speaks itself. rare alternative basis of breach. ordinarily, applies when plaintiff has little or limited access evidence of negligent conduct. res ipsa loquitur requires defendant have exclusive control on thing causes injury , act 1 not ordinarily occur without negligence.