Law & American Society

Negligence

Negligence

• Negligence is conduct that falls below the standard established by law for protecting others against unreasonable risks of harm.

• Neglect?

Dr. D’Angelo, a surgeon, forgets to remove a clamp from a patient’s body while operating and stitches the patient up.

Monica leaves a loaded gun on the floor where her younger brothers and sisters usually play. A child is shot.

A city employee working in a manhole forgets to replace the cover when he goes to lunch and a pedestrian falls in and is injured.

Elements of Negligence

• For a plaintiff to win a negligence action against the defendant, each of the following elements must be proven by a preponderance of the evidence:

• 1. Duty: The defendant, or accused wrongdoer, owed a duty of care to the plaintiff, or injured person.

• 2. Breach of duty: the defendant’s conduct breached or violated that duty.

• 3. Causation: The defendant’s conduct caused the plaintiff’s harm

• 4. Damages: the plaintiff suffered actual injuries or losses.

• ****All of these elements must be proven for the plaintiff to prevail****

Duty & Breach

• Everyone has a general duty, or legal obligation, to exercise reasonable care toward other persons and their property.

• Negligence law is primarily concerned with compensating victims who are harmed by a wrongdoer’s action or inaction that breaches, or violates, this standard of reasonable care.

The Reasonable Person Standard

• “the reasonable person of ordinary prudence or carefulness”

• This is the way we expect the idealized person to act, not the way a typical person acts.

The Spilled Coffee• Liebeck v. McDonald's Restaurants, also known as the “McDonald's

coffee case,” is a 1994 product liability lawsuit that became a flashpoint in the debate in the U.S. over tort reform after a jury awarded $2.86 million to a woman who burned herself with hot coffee. The trial judge reduced the total award to $640,000, and the parties settled for a confidential amount before an appeal was decided. The case entered popular understanding as an example of frivolous litigation;[ ABC News calls the case “the poster child of excessive lawsuits.”

• Liebeck's attorneys argued that McDonald's coffee was "defective", claiming that it was too hot and more likely to cause serious injury than coffee served at any other place. Moreover, McDonald's had refused several prior opportunities to settle for less than the $640,000 ultimately awarded. Reformers defend the popular understanding of the case as materially accurate; note that the vast majority of judges to consider similar cases dismiss them before they get to a jury; and argue that McDonald's refusal to offer more than a nuisance settlement reflects the meritless nature of the suit rather than any wrongdoing.

• Background• On February 27, 1992, Stella Liebeck, a 79-year-old woman from

Albuquerque, New Mexico, ordered a 49¢ cup of coffee from the drive-through window of a local McDonald's restaurant. Liebeck was in the passenger's seat of her Ford Probe, and her grandson Chris parked the car so that Liebeck could add cream and sugar to her coffee. She placed the coffee cup between her knees and pulled the far side of the lid toward her to remove it. In the process, she spilled the entire cup of coffee on her lap. Liebeck was wearing cotton sweatpants; they absorbed the coffee and held it against her skin as she sat in the puddle of hot liquid for over 90 seconds, scalding her thighs, buttocks, and groin. Liebeck was taken to the hospital, where it was determined that she had suffered third-degree burns on six percent of her skin and lesser burns over sixteen percent. She remained in the hospital for eight days while she underwent skin grafting. Two years of treatment followed.

• Attempts to settle• Liebeck sought to settle with McDonald's for US $20,000 to cover her

medical costs, which were $11,000, but the company offered only $800. When McDonald's refused to raise its offer, Liebeck retained Texas attorney Reed Morgan. Morgan filed suit in a New Mexico District Court accusing McDonald's of “gross negligence” for selling coffee that was “unreasonably dangerous” and “defectively manufactured.” McDonald's refused Morgan's offer to settle for $90,000. Morgan offered to settle for $300,000, and a mediator suggested $225,000 just before trial, but McDonald's refused these final pre-trial attempts to settle.

• Evidence presented to the jury• During the case, Liebeck's attorneys discovered that McDonald's

required franchises to serve coffee at 180–190 °F (82–88 °C). At that temperature, the coffee would cause a third-degree burn in two to seven seconds. Stella Liebeck's attorney argued that coffee should never be served hotter than 140 °F (60 °C), and that a number of other establishments served coffee at a substantially lower temperature than McDonald's. Liebeck's lawyers presented the jury with evidence that 180 °F coffee like that McDonald’s served may produce third-degree burns (where skin grafting is necessary) in about 12 to 15 seconds. (As a reference, the boiling point of water is 212 °F or 100 °C.) Lowering the temperature to 160 °F (71 °C) would increase the time for the coffee to produce such a burn to 20 seconds. (A British court later rejected this argument as scientifically false. Liebeck's attorneys argued that these extra seconds could provide adequate time to remove the coffee from exposed skin, thereby preventing many burns. McDonald's claimed that the reason for serving such hot coffee in its drive-through windows was that, because those who purchased the coffee typically wanted to drive a distance with the coffee, the high initial temperature would keep the coffee hot during the trip. However, the company's own research showed that some customers intend to consume the coffee immediately while driving.

• Other documents obtained from McDonald's showed that from 1982 to 1992 the company had received more than 700 reports of people burned by McDonald's coffee to varying degrees of severity, and had settled claims arising from scalding injuries for more than $500,000. McDonald's quality control manager, Christopher Appleton, testified that this number of injuries was insufficient to cause the company to evaluate its practices. He argued that all foods hotter than 130 °F (54 °C) constituted a burn hazard, and that restaurants had more pressing dangers to warn about. The plaintiffs argued that Appleton conceded that McDonald's coffee would burn the mouth and throat if consumed when served. The trial lasted from August 8–17, 1994, and the twelve-person jury reached their verdict before Judge Robert H. Scott on August 18.

• Verdict and settlement• Applying the principles of comparative negligence, the jury found that McDonald's

was 80% responsible for the incident and Liebeck was 20% at fault. Though there was a warning on the coffee cup, the jury decided that the warning was neither large enough nor sufficient. They awarded Liebeck US$200,000 in compensatory damages, which was then reduced by 20% to $160,000. In addition, they awarded her $2.7 million in punitive damages. The jurors apparently arrived at this figure from Morgan's suggestion to penalize McDonald's for one or two days' worth of coffee revenues, which were about $1.35 million per day. The judge reduced punitive damages to $480,000, three times the compensatory amount, for a total of $640,000. The decision was appealed by both McDonald's and Liebeck in December 1994, but the parties settled out of court for an undisclosed amount less than $600,000. Liebeck died on August 4, 2004, at the age of 91.

Causation

• Once the plaintiff proves that the defendant owes him or her a duty and that this duty was violated, there must be proof that the defendant’s acts caused harm to the plaintiff.

• When you think about the elements of causation you must consider two separate issues:

Causation

• 1. Cause in fact-is harm that would not have occurred without the wrongful act, the act is the cause in fact.

• 2. Proximate Cause-is there must be a close connection between the wrongful act and the harm caused.

Causation

• The Great Chicago Fire

Damages

• A plaintiff who proves duty, breach, and both forms of causation still must prove actual damages to recover in a negligence action.

• As a freshman college prank, Carolyn decides to remove a stop sign from an intersection and put it in her dormitory room. To avoid being noticed, she chooses a stop sign at the intersection of a little-used country road and a two-lane state highway several miles out of town. The night after her prank, a motorist from out of state drives through the intersection and is struck by a car traveling at 50 miles per hour along the state highway.

• Both motorists are seriously injured, and their cars are totally demolished. They recover from the their injuries after several months. The police suspect a college prank, and after some investigating, are able to find out who removed the sign. The injured motorists bring a civil action against Carolyn, claiming extensive damages.

• 1. Can the injured motorists prove that Carolyn’s act caused their harm? Explain your answer.

• 2. Assume that the plaintiffs can prove duty, breach, and causation. List all the types of damages each plaintiff might have suffered. Could they recover all of these damages? Explain your answer.

Defenses to Negligence Suits

• One traditional legal defense to negligence is contributory negligence.

• This means that as a plaintiff, you cannot recover damages from the defendant if your own negligence contributed in any way to the harm suffered.

Defenses to Negligence Suits

• comparative negligence defense means dividing the loss according to the degree to which each person is at fault.

Defenses to Negligence Suits

• Assumption of risk is used when a person voluntarily encounters a known danger and decides to accept the risk of that danger.

• Analyze each case below. Identify the plaintiff and defendant and decide whether the defendant has a legal defense. Assume the state has a comparative negligence law.

• 1. Olivia and her friends go to an amusement park, and she decides to ride the scariest roller coaster. After each rider is seated, the attendant secures that rider with a safety bar. After the first large hill, she detaches it. Later in the ride, Olivia is thrown from the roller coaster and is badly hurt.

• 2. A large sign posted at the foot of the lifeguard station warns of a very dangerous undertow beyond the first sandbar. There are buoys floating around the sandbar. Howard swims out beyond the sandbar and drowns before the lifeguard is able to reach him.

• 3. Joel’s car runs out of gas on a railway crossing in a rural area. He puts on his flashers to warn approaching cars and begins walking to the nearest gas station, which is a mile away. A freight train approaches, and the engineer sounds hi shorn several times, thinking the driver will move off the tracks. By the time the engineer realizes that the car is abandoned, it is too late to stop the train. The car is totally demolished.

Law & American Society

Negligence

Negligence

• Tort law establishes standards of care that society expects from people. These standards protect people against unreasonable risks of harm. When conduct falls below these standards, negligence has occurred. Tort law analyzes such negligence as it relates to a person’s conduct. Even a person who cares a great deal about the welfare of others may be negligent if his or her conduct creates an unreasonable risk of harm. Likewise, a person who is unconcerned about the safety of others may not be negligent if his or her conduct does not subject another person to an unreasonable risk of harm.

• Dr. D’Angelo, a surgeon, forgets to remove a clamp from a patients body while operating and stitches the patient up.

• Monica leaves a loaded rifle on the floor where her younger brothers and sisters usually play. A child is shot.

• A city employee working in a manhole forgets to replace the cover when he goes to lunch and a pedestrian falls in and is injured

• A drug company markets a cold medicine without conducting adequate medical testing. It assumes the pill is safe because people have used similar drugs for years. A woman develops a serious illness from using the drug.

Elements of Negligence

• Each of the following elements must be proven by a preponderance of the evidence for a plaintiff to win a negligence action against the defendant

Duty

• Duty: The defendant, or accused wrongdoer, owed a duty of care to the plaintiff, or injured person.

Duty

• Everyone has a general duty, or legal obligation, to exercise reasonable care toward other persons and their property.

Breach of Duty

• Breach of duty: The defendant’s conduct breached or violated that duty.

Breach of Duty

• Negligence law is primarily concerned with compensating victims who are harmed by a wrongdoer’s action or inaction that breaches, or violates, this standard of reasonable care.

The Case of Bartender Liability

• Lance is a 16 year old high school junior. He gathers the alcohol left over from his parents New Year’s Day party and decides to throw a party at his house on a Saturday night when his parents are out of town. He knows that some of his friends have driven to his house, but doesn’t pay much attention to whether or not they are drinking. He sees his friend Abby finish a beer, grab her car keys, and walk out the door to go home. Stefan, another friend. Leaves with Abby to get a ride home. Lance does not know whether Stefan has been drinking , but watches as Abby drives the car away with Stefan in the passenger seat. As Abby pulls her car onto the highway, she swerves and hits another car head-on. Stefan and the driver of the other car are seriously injured.

• 1. Who can sue whom in this situation?• 2. What duty did Lance have in this situation? Did he violate

that duty?• 3. What duty, if any, do Lance’s parents have in this situation?

Did they violate that duty? Would it make a difference if his parents had been at home?

• 4. Now assume that lance is a 25-year-old bartender who serves Abby and Stefan, who are both over 21, although he knows that they are intoxicated. The rest of the facts remain the same. Answer questions a and b using this scenario.

• 5. Is it fair to hold Lance responsible in either situation? Give your reasons.

• 6. If you were at the underage drinking party described, what would you do? What if you were at the bar in the second scenario?

• 7. Some bars have “designated driver” programs. Why have they done this? Should people who hold private parties in their homes do anything special to protect their guests from drinking and driving? What, if anything, could be done?

Causation

• Causation: The defendant’s conduct caused the plaintiff’s harm.

Causation

• Once a plaintiff proves that the defendant owes him or her a duty and that this duty was violated, there must be proof that the defendant’s acts caused the harm to the plaintiff.

Causation

• When you think about the elements of causation, you must consider two separate issues:

Cause in Fact

&

Proximate Cause

Cause in Fact• Cause in Fact is easy to understand.

• If the harm would not have occurred without the wrongful act, the act is the cause in fact.

Proximate Cause

• It is often hard to draw the line in proximate cause situations.

• The basic idea behind proximate cause is that there must be a close connection between the wrongful act and the harm caused.

• The harm caused must have been a forseeable result of the act or acts.

• How much was foreseeable harm?

Damages

• Damages: The plaintiff suffered actual injuries or losses.

Damages

• The concept of damages revolves around responsibility. Requiring payment of money has traditionally been the way society has tried to hold people responsible for their actions.

Defenses to Negligence Suits

Defenses to Negligence Suits

• In Janifer v. Jandebeur, the estate of a passenger killed in a car accident brought suit against the intoxicated driver, The court found that the passenger, Mr. Redman, voluntarily exposed himself to an unreasonable risk when he agreed to ride with the intoxicated driver. Thus, Mr. Redman knowingly assumed the risk of injury and/or death. Accordingly, the court did not award his estate damages from the driver.

Defenses to Negligence Suits

• Suppose a group of teenagers are playing a game in which they run out in front of speeding cars. Arguably, these teenagers know of and appreciate the danger of engaging in such actions. If Todd is struck by a car and sues the driver, the driver/defendant may be able to use the defense of assumption of risk.

Defenses to Negligence Suits

• On the other hand, assume Todd is reading a book while crossing a street and is struck by a speeding car. In this scenario Todd has knowingly assumed a risk, but he did fail to use ordinary care in crossing the street. Thus, the defendant could argue that the plaintiff was contributorily negligent because he breached his duty of care.

Cigarettes and the Law

• Grab a book off the counter and read the problem of “Cigarettes and the Law” and answer the questions that go with it.