Chapter 5

NEGLIGENCE GENERALLY

Tort law recognizes a broadly-defined “omnibus” tort called “negligence.” The essence of this tort is that the defendant has imposed an “unreasonable” risk of harm on the plaintiff, and the plaintiff has been injured as a result. Here are the most important concepts covered in this Chapter:

• Negligence generally:  The tort of “negligence” occurs when D’s conduct imposes an unreasonable risk upon another, resulting in an injury to that other. D’s mental state is irrelevant.
  • Balancing:  In determining whether the risk of harm from D’s conduct was so great as to be “unreasonable,” courts use a balancing test: if the risk of harm to another from D’s conduct is greater than the “utility” of that conduct, the risk is deemed “unreasonable.”
• The reasonable person:  The reasonableness of D’s conduct is viewed under an objective standard: Would a “reasonable person of ordinary prudence,” in D’s position, do as D did?
• “Negligence per se” doctrine:  Most courts apply the “negligence per se” doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by D is “negligence per se”, and thus conclusively establishes that D was negligent. (But the negligence per se doctrine will apply only where P shows that the statute was intended to guard against the very kind of injury in question.)
• Res ipsa loquitur:  The doctrine of res ipsa loquitur (“the thing speaks for itself”) allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent.
  • Requirements:  P must meet four main requirements to use the doctrine: (1) There must be no direct evidence as to D’s precise conduct; (2) P must show that the harm is of a type that does not normally occur except through the negligence of someone; (3) P must show that the instrumentality which caused the harm was at all times within D’s exclusive control; and (4) P must show that the injury was not due to P’s own negligence.

I. INTRODUCTION

A. Distinguished from intentional torts:  In the previous chapters, we have examined a number of distinct, narrowly defined “intentional” torts. We now turn to a much more broadly defined tort, that of “negligence”. While a cause of action for negligence has a number of components, which will be listed and discussed below, the tort differs from intentional torts in one particular way: whereas the intentional tortfeasor generally desires to create a certain objectionable result (e.g. a harmful contact with the defendant’s person), or at least knows with substantial certainty that such a result will occur, the negligent tortfeasor has no such desire, and may have in fact desperately wished to avoid the harmful result which occurred. To phrase it another way, the intentional tortfeasor’s mental state is of the utmost importance, but the negligent tortfeasor’s mental state is irrelevant – the essence of his tort is that his conduct (without regard to his mind) imposed an unreasonable risk upon others.