Ethical and Criminal Responsibility
Review the Ethics in Action scenario in Chapter 7 of your text. Write a paper of not more than 1,050 words in which you answer the following questions: Does an employer have an ethical obligation to take corrective or preventative action when the employer knows, or has reason to know, that the employee poses a danger to others? Does it matter whether the employer has irrefutable evidence that the employee poses a danger to others or whether the employer has only a reasonable suspicion to that effect? If an employer has an ethical obligation to take corrective or preventative action, to whom does that obligation extend and what should that obligation entail? Does the employer owe any ethical obligation to the employee in such situations? What potential torts are demonstrated in the scenario? Analyze any potential criminal liability for the employer and the employee. Cite at least 5 peer-reviewed references. Format your paper consistent with APA guidelines
During evening hours, Hen Horn, a truck driver employed by Ralphs Grocery Co. (Ralphs), was driving in California on Interstate 10 as part of his job duties. Horn stopped his tractor-trailer rig on a large dirt shoulder alongside the highway in order to eat a snack he had brought with him. He regularly stopped for a snack in that spot when driving in the vicinity. The dirt shoulder was part of a somewhat larger dirt area that sat between Interstate 10 and an intersecting highway. Near the spot where Horn parked, California’s Department of Transportation had placed an “Emergency Parking Only” sign. Horn saw the sign from where he parked, approximately 16 feet from the outermost traffic lane of Interstate 10.
That same evening, Adelelmo Cabral was driving home from work alone in his pickup truck on Interstate 10. Juan Perez was driving behind Cabral on that same highway. Perez saw Cabral’s vehicle, which was traveling at 70 to 80 miles per hour, swerve within its lane, then change lanes rapidly, and then pass other vehicles. Cabral’s pickup truck crossed the outermost lane of traffic, left the highway, and traveled parallel to the road along the adjacent dirt until it hit the rear of Horn’s trailer. Perez saw no brake lights or other indications of an attempt on Cabral’s part to slow down before the collision. A toxicology report on Cabral, who died at the scene, was negative. Because there was no evidence of intoxication, suicide, or a mechanical defect in the pickup, it appeared that Cabral either had fallen asleep or had been victimized by an unknown medical condition.
Cabral’s widow, Maria Cabral, sued Ralphs for the allegedly wrongful death of her husband. She contended that Ralphs should be held liable because its employee (Horn) had caused her husband’s death through negligence in stopping for nonemergency reasons on the freeway shoulder. Ralphs responded by denying that Horn was negligent and by asserting that the decedent’s own negligence was the real cause of the accident. A California jury concluded that both Cabral and Horn were negligent and that their respective negligent acts were substantial factors in causing Cabral’s death. The jury returned a verdict in favor of Maria Cabral, but, as required by California law, the trial court reduced the amount of damages awarded by the jury in order to allow for the fact that the decedent’s own negligence had partially accounted for his death. Ralphs appealed to the California Court of Appeal, which reversed the lower court’s decision. The Court of Appeal held that there was no basis for holding Ralphs liable for negligence because neither Ralphs nor Horn owed the decedent a duty of reasonable care to prevent a collision with Horn’s parked-off-the-roadway rig. Maria Cabral appealed to the Supreme Court of California.
Think about the above facts as you study this chapter. Consider the following questions:
Was the Court of Appeal correct in its conclusion that neither Horn nor Ralphs owed a duty to the decedent? What considerations go into a determination of whether a duty to exercise reasonable care exists? How do you think the Supreme Court of California ruled on the duty question?
In addition to proving the existence of a duty, what other elements did the plaintiff need to prove in order to establish that Ralphs should be held liable for negligence?
In any event, why wouldRalphseven be at risk of liability for negligence? If there was negligence here, wasn’t it Horn’s negligence? Shouldn’t the plaintiff have sued Horn rather than Ralphs?
Page 226
Even if Horn was negligent and even if Ralphs might otherwise be liable for Horn’s negligence, why wouldn’t the decedent’s own negligence bar the plaintiff from winning this wrongful death case? What if the decedent’s negligence waslessof a causation factor than any negligence on the part of Horn and Ralphs? Would that matter in determining the case’s outcome and/or the amount of damages to be awarded? What if the decedent’s negligence was more of a causation factor than any negligence on the part of Horn and Ralphs? Would that matter in determining the case’s outcome and/or the amount of damages to be awarded?
Although there was no evidence in this case that Horn was an unsafe driver generally, did Ralphs have a legal obligation when it hired Horn to conduct some sort of investigation of his driving skills, history, and background before sending him out on the road? Why or why not? Did Ralphs have anyethicalobligations in that regard? If so, what are they, and why? If not, why not?
LOLEARNING OBJECTIVES
After studying this chapter, you should be able to:
7-1Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation of injury).
7-2Explain what the reasonable care standard contemplates.
7-3Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.
7-4Explain what goes into a determination of whether a defendant breached the duty of reasonable care.
7-5Explain the differences among the respective duties of care owed by owners or possessors of property to invitees, licensees, and trespassers.
7-6Explain what the doctrine of negligence per se does and when it applies.
7-7Identify the types of injuries or harms for which a plaintiff may recover compensatory damages in a negligence case.
7-8Explain the difference between actual cause and proximate cause.
7-9Explain what an intervening cause is and what effect it produces.
7-10Explain the difference between traditional contributory negligence and the comparative negligence doctrine now followed by almost all states.
7-11Explain the difference in operation between pure comparative negligence and mixed comparative negligence.
7-12Identify circumstances in which strict liability principles, rather than those of negligence, control a case.
THE INDUSTRIAL REVOLUTION THAT changed the face of 19th-century America created serious strains on tort law. Railroads, factories, machinery, and new technologies meant increased injuries to persons and harm to their property. These injuries did not fit within the intentional torts framework because most were unintended. In response, courts created the law of negligence.
Negligence law initially was not kind to injured plaintiffs. One reason was the fear that if infant industries were held responsible for all the harms they caused, the country’s industrial development would be seriously restricted. As a viable industrial economy emerged in the 20th century, this concern began to fade. Also fading over the same period was the 19th-century belief that there should be no tort liability without genuine fault on the defendant’s part. More and more, the injuries addressed by tort law have come to be seen as the inevitable consequences of life in a high-speed, technologically advanced society. Although 21st-century negligence rules have not eliminated the fault feature, they sometimes seem consistent with a goal of imposing tort liability on the party better positioned to bear the financial costs of these consequences. That party often is the defendant. However, it is important to remember that even though negligence law may seem to have become more proplaintiff in recent decades, statistics indicate that defendants win negligence cases at least as often as plaintiffs do.
Page 227
Because most tort cases that do not involve intentional torts are governed by the law of negligence, the bulk of this chapter will deal with negligence principles. In a narrow range of cases, however, courts dispense with the fault requirement of negligence and impose strict liability on defendants. Strict liability’s more limited application will be addressed during the latter part of this chapter. The chapter will conclude with discussion of recent decades’ tort reform movement, whose primary aims are to reduce plaintiffs’ ability to prevail in tort cases and limit the amounts of damages they may receive when they win such cases.
LO7-1
Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation of injury).
Negligence
The previous chapter characterized negligence as conduct that falls below the level reasonably necessary to protect others against significant risks of harm. The elements of a negligence claim are (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant committed a breach of this duty; and (3) that this breach was the actual and proximate cause of injury experienced by the plaintiff. In order to win a negligence case, the plaintiff must prove each of these elements, which will be examined in the following pages. Later in the chapter, defenses to negligence liability will be considered.
LO7-2
Explain what the reasonable care standard contemplates.
Duty and Breach of Duty
Duty of Reasonable Care Negligence law rests on the premise that members of society normally should behave in ways that avoid the creation of unreasonable risks of harm to others. As a general rule, therefore, negligence law contemplates that each person must act as a reasonable person of ordinary prudence would have acted under the same or similar circumstances. This standard for assessing conduct is often called either the “reasonable person” test or the “reasonable care” standard. In most cases, the duty to exercise reasonable care serves as the relevant duty for purposes of a negligence claim’s first element. The second element—breach of duty—requires the plaintiff to establish that the defendant failed to act as a reasonable person would have acted. Negligence law’s focus on reasonableness of behavior leads to a broad range of applications in everyday personal life (e.g., a person’s negligent driving of a car) and in business and professional contexts (e.g., an employer’s negligent hiring of a certain employee, or an accountant’s, attorney’s, or physician’s negligent performance of professional obligations).
Recent years have witnessed attempts to extend negligence principles to contexts not previously explored in litigation. For instance, in a case that was ongoing as this book went to press, numerous former National Football League (NFL) players sued the NFL for alleged failures to disclose the full extent of the long-term health risks posed by concussions (particularly of the repeated variety) and for alleged failures to develop appropriate protocols that would guard against players being put back on the field too soon after a head injury. Negligence was among the legal theories being invoked by the plaintiffs. As the deadline for this book approached, the players and the NFL were negotiating a possible settlement in which the NFL would, among other things, agree to set up a very large fund against which the ex-players could make claims.
LO7-3
Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.
Was the Duty Owed? Of course, there could not have been a breach of duty if the defendant did not owe the plaintiff a duty in the first place. It therefore becomes important, before we look further at how the reasonable person test is applied, to consider the ways in which courts determine whether the defendant owed the plaintiff a duty of reasonable care.
Courts typically hold that the defendant owed the plaintiff a duty of reasonable care if the plaintiff was among those who would foreseeably be at risk of harm stemming from the defendant’s activities or conduct, or if a special relationship logically calling for such a duty existed between the parties. Most courts today broadly define the group of foreseeable “victims” of a defendant’s activities or conduct. As a result, a duty of reasonable care is held to run from the defendant to the plaintiff in a high percentage of negligence cases—meaning that the outcome of the case will hinge on whether the defendant breached the duty or on whether the requisite causation link between the defendant’s breach and the plaintiff’s injury is established.
In Shafer v. TNT Well Service, Inc., which follows, the court considers whether to recognize a duty on the part of an employer to exercise reasonable care in supervising employees and in permitting particular employees to use company vehicles. In addition, Shafer touches on other possible grounds on which an employer may sometimes be held liable when an employee’s actions cause harm to a third party.
NEGLIGENCE AND STRICT LIABILITY
During evening hours, Hen Horn, a truck driver employed by Ralphs Grocery Co. (Ralphs), was driving in California on Interstate 10 as part of his job duties. Horn stopped his tractor-trailer rig on a large dirt shoulder alongside the highway in order to eat a snack he had brought with him. He regularly stopped for a snack in that spot when driving in the vicinity. The dirt shoulder was part of a somewhat larger dirt area that sat between Interstate 10 and an intersecting highway. Near the spot where Horn parked, California’s Department of Transportation had placed an “Emergency Parking Only” sign. Horn saw the sign from where he parked, approximately 16 feet from the outermost traffic lane of Interstate 10.
That same evening, Adelelmo Cabral was driving home from work alone in his pickup truck on Interstate 10. Juan Perez was driving behind Cabral on that same highway. Perez saw Cabral’s vehicle, which was traveling at 70 to 80 miles per hour, swerve within its lane, then change lanes rapidly, and then pass other vehicles. Cabral’s pickup truck crossed the outermost lane of traffic, left the highway, and traveled parallel to the road along the adjacent dirt until it hit the rear of Horn’s trailer. Perez saw no brake lights or other indications of an attempt on Cabral’s part to slow down before the collision. A toxicology report on Cabral, who died at the scene, was negative. Because there was no evidence of intoxication, suicide, or a mechanical defect in the pickup, it appeared that Cabral either had fallen asleep or had been victimized by an unknown medical condition.
Cabral’s widow, Maria Cabral, sued Ralphs for the allegedly wrongful death of her husband. She contended that Ralphs should be held liable because its employee (Horn) had caused her husband’s death through negligence in stopping for nonemergency reasons on the freeway shoulder. Ralphs responded by denying that Horn was negligent and by asserting that the decedent’s own negligence was the real cause of the accident. A California jury concluded that both Cabral and Horn were negligent and that their respective negligent acts were substantial factors in causing Cabral’s death. The jury returned a verdict in favor of Maria Cabral, but, as required by California law, the trial court reduced the amount of damages awarded by the jury in order to allow for the fact that the decedent’s own negligence had partially accounted for his death. Ralphs appealed to the California Court of Appeal, which reversed the lower court’s decision. The Court of Appeal held that there was no basis for holding Ralphs liable for negligence because neither Ralphs nor Horn owed the decedent a duty of reasonable care to prevent a collision with Horn’s parked-off-the-roadway rig. Maria Cabral appealed to the Supreme Court of California.
Think about the above facts as you study this chapter. Consider the following questions:
Was the Court of Appeal correct in its conclusion that neither Horn nor Ralphs owed a duty to the decedent? What considerations go into a determination of whether a duty to exercise reasonable care exists? How do you think the Supreme Court of California ruled on the duty question?
In addition to proving the existence of a duty, what other elements did the plaintiff need to prove in order to establish that Ralphs should be held liable for negligence?
In any event, why would Ralphs even be at risk of liability for negligence? If there was negligence here, wasn’t it Horn’s negligence? Shouldn’t the plaintiff have sued Horn rather than Ralphs?
Page 226
Even if Horn was negligent and even if Ralphs might otherwise be liable for Horn’s negligence, why wouldn’t the decedent’s own negligence bar the plaintiff from winning this wrongful death case? What if the decedent’s negligence was less of a causation factor than any negligence on the part of Horn and Ralphs? Would that matter in determining the case’s outcome and/or the amount of damages to be awarded? What if the decedent’s negligence was more of a causation factor than any negligence on the part of Horn and Ralphs? Would that matter in determining the case’s outcome and/or the amount of damages to be awarded?
Although there was no evidence in this case that Horn was an unsafe driver generally, did Ralphs have a legal obligation when it hired Horn to conduct some sort of investigation of his driving skills, history, and background before sending him out on the road? Why or why not? Did Ralphs have any ethical obligations in that regard? If so, what are they, and why? If not, why not?
LOLEARNING OBJECTIVES
After studying this chapter, you should be able to:
7-1Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation of injury).
7-2Explain what the reasonable care standard contemplates.
7-3Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.
7-4Explain what goes into a determination of whether a defendant breached the duty of reasonable care.
7-5Explain the differences among the respective duties of care owed by owners or possessors of property to invitees, licensees, and trespassers.
7-6Explain what the doctrine of negligence per se does and when it applies.
7-7Identify the types of injuries or harms for which a plaintiff may recover compensatory damages in a negligence case.
7-8Explain the difference between actual cause and proximate cause.
7-9Explain what an intervening cause is and what effect it produces.
7-10Explain the difference between traditional contributory negligence and the comparative negligence doctrine now followed by almost all states.
7-11Explain the difference in operation between pure comparative negligence and mixed comparative negligence.
7-12Identify circumstances in which strict liability principles, rather than those of negligence, control a case.
THE INDUSTRIAL REVOLUTION THAT changed the face of 19th-century America created serious strains on tort law. Railroads, factories, machinery, and new technologies meant increased injuries to persons and harm to their property. These injuries did not fit within the intentional torts framework because most were unintended. In response, courts created the law of negligence.
Negligence law initially was not kind to injured plaintiffs. One reason was the fear that if infant industries were held responsible for all the harms they caused, the country’s industrial development would be seriously restricted. As a viable industrial economy emerged in the 20th century, this concern began to fade. Also fading over the same period was the 19th-century belief that there should be no tort liability without genuine fault on the defendant’s part. More and more, the injuries addressed by tort law have come to be seen as the inevitable consequences of life in a high-speed, technologically advanced society. Although 21st-century negligence rules have not eliminated the fault feature, they sometimes seem consistent with a goal of imposing tort liability on the party better positioned to bear the financial costs of these consequences. That party often is the defendant. However, it is important to remember that even though negligence law may seem to have become more proplaintiff in recent decades, statistics indicate that defendants win negligence cases at least as often as plaintiffs do.
Page 227
Because most tort cases that do not involve intentional torts are governed by the law of negligence, the bulk of this chapter will deal with negligence principles. In a narrow range of cases, however, courts dispense with the fault requirement of negligence and impose strict liability on defendants. Strict liability’s more limited application will be addressed during the latter part of this chapter. The chapter will conclude with discussion of recent decades’ tort reform movement, whose primary aims are to reduce plaintiffs’ ability to prevail in tort cases and limit the amounts of damages they may receive when they win such cases.
LO7-1
Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation of injury).
Negligence
The previous chapter characterized negligence as conduct that falls below the level reasonably necessary to protect others against significant risks of harm. The elements of a negligence claim are (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant committed a breach of this duty; and (3) that this breach was the actual and proximate cause of injury experienced by the plaintiff. In order to win a negligence case, the plaintiff must prove each of these elements, which will be examined in the following pages. Later in the chapter, defenses to negligence liability will be considered.
LO7-2
Explain what the reasonable care standard contemplates.
Duty and Breach of Duty
Duty of Reasonable Care Negligence law rests on the premise that members of society normally should behave in ways that avoid the creation of unreasonable risks of harm to others. As a general rule, therefore, negligence law contemplates that each person must act as a reasonable person of ordinary prudence would have acted under the same or similar circumstances. This standard for assessing conduct is often called either the “reasonable person” test or the “reasonable care” standard. In most cases, the duty to exercise reasonable care serves as the relevant duty for purposes of a negligence claim’s first element. The second element—breach of duty—requires the plaintiff to establish that the defendant failed to act as a reasonable person would have acted. Negligence law’s focus on reasonableness of behavior leads to a broad range of applications in everyday personal life (e.g., a person’s negligent driving of a car) and in business and professional contexts (e.g., an employer’s negligent hiring of a certain employee, or an accountant’s, attorney’s, or physician’s negligent performance of professional obligations).
Recent years have witnessed attempts to extend negligence principles to contexts not previously explored in litigation. For instance, in a case that was ongoing as this book went to press, numerous former National Football League (NFL) players sued the NFL for alleged failures to disclose the full extent of the long-term health risks posed by concussions (particularly of the repeated variety) and for alleged failures to develop appropriate protocols that would guard against players being put back on the field too soon after a head injury. Negligence was among the legal theories being invoked by the plaintiffs. As the deadline for this book approached, the players and the NFL were negotiating a possible settlement in which the NFL would, among other things, agree to set up a very large fund against which the ex-players could make claims.
LO7-3
Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.
Was the Duty Owed? Of course, there could not have been a breach of duty if the defendant did not owe the plaintiff a duty in the first place. It therefore becomes important, before we look further at how the reasonable person test is applied, to consider the ways in which courts determine whether the defendant owed the plaintiff a duty of reasonable care.
Courts typically hold that the defendant owed the plaintiff a duty of reasonable care if the plaintiff was among those who would foreseeably be at risk of harm stemming from the defendant’s activities or conduct, or if a special relationship logically calling for such a duty existed between the parties. Most courts today broadly define the group of foreseeable “victims” of a defendant’s activities or conduct. As a result, a duty of reasonable care is held to run from the defendant to the plaintiff in a high percentage of negligence cases—meaning that the outcome of the case will hinge on whether the defendant breached the duty or on whether the requisite causation link between the defendant’s breach and the plaintiff’s injury is established.
In Shafer v. TNT Well Service, Inc., which follows, the court considers whether to recognize a duty on the part of an employer to exercise reasonable care in supervising employees and in permitting particular employees to use company vehicles. In addition, Shafer touches on other possible grounds on which an employer may sometimes be held liable when an employee’s actions cause harm to a third party.
Shafer v. TNT Well Service, Inc. 285 P.3d 958 (Wyo. Sup. Ct. 2012)
In early 2008, TNT Well Service, Inc. hired Melvin Clyde as a rig operator. Clyde’s duties called for him to travel to various well sites within approximately 100 miles of Gillette, Wyoming. TNT provided Clyde with a company-owned pickup, which he used not only for work-related purposes but also to travel to and from his home in Upton, Wyoming.
On February 12, 2009, at approximately 5:30 p.m., Clyde was driving toward Newcastle, Wyoming in the TNT pickup when it crossed the highway’s center line and collided head-on with a tractor-trailer driven by Rodney Shafer (the tractor-trailer’s owner). Clyde was pronounced dead at the scene. A post-accident blood test revealed the presence of controlled substances in his blood. Shafer was injured in the collision, and his tractor-trailer was damaged beyond repair.
Shafer and his wife, Brenda, sued TNT in a Wyoming district court on three theories: (1) that TNT was vicariously liable for Clyde’s negligence under the doctrine of respondeat superior; (2) that TNT negligently supervised Clyde; and (3) that TNT negligently entrusted a company vehicle to Clyde. Following discovery, TNT moved for summary judgment. In that motion, TNT asserted that Clyde was not employed by TNT at the time of the accident because his employment had been terminated at least an hour earlier. TNT also contended that it could not be held vicariously liable because Clyde was not acting within the scope of his employment at the time of the accident.
The district court granted summary judgment in TNT’s favor on all of the Shafers’ claims. With regard to the respondeat superior claim, the court concluded that Clyde’s employment had been terminated prior to the accident and held that there was no genuine issue regarding this key fact. Additionally, after finding that Clyde “was traveling in a direction in which his employer conducted no business, outside of working hours, on a day he had been absent from work and after he had been informed someone from the company was coming to collect the truck and he was to leave the truck in Upton,” the court held that “even if an employer-employee relationship had existed . . . at the time of the accident, the undisputed facts would lead to only one reasonable inference—Mr. Clyde had deviated from the … scope of his employment and was upon a personal errand when the accident occurred.”
In granting summary judgment in TNT’s favor on the Shafers’ direct liability claims, the court concluded that TNT could not be liable for negligent supervision of Clyde because no employment relationship existed at the time of the accident. Similarly, the court concluded that summary judgment for TNT was appropriate on the Shafers’ negligent entrustment claim because, in the court’s view, Clyde’s authorization to use the TNT pickup terminated when his employment ended. The Shafers appealed to the Supreme Court of Wyoming.
Burke, Justice
Motions for summary judgment are [to be granted only if] there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. The district court granted summary judgment after determining there was no genuine issue as to whether Clyde’s employment with TNT had been terminated prior to the collision with Shafer’s vehicle. The Shafers contend that Clyde’s employment had not been terminated prior to the accident.
The Shafers do not, however, challenge the district court’s conclusion that Clyde was not acting within the scope of his employment at the time of the accident in this case, and, accordingly, they [are no longer pursuing their] respondeat superior theory of vicarious liability. Rather, they claim that TNT is directly liable [on negligent supervision and negligent entrustment grounds and] that these claims are viable [even if] an employee acts outside the scope of his employment when harm is caused.
The Shafers contend that TNT is subject to direct liability for its own negligence in failing to adequately supervise Clyde. [They rely] on Restatement (Second) of Torts § 317, which provides as follows:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a)the servant
(i)is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii)is using a chattel of the master, and
(b)the master
(i)knows or has reason to know that he has the ability to control his servant, and
(ii)knows or should know of the necessity and opportunity for exercising such control.
(Emphasis added.) Unlike a claim of respondeat superior, a negligent supervision claim under § 317 is not based on imputed or vicarious liability, but rather on the employer’s own negligence in failing to exercise due care to protect third parties from the foreseeable tortious acts of an employee. [B]efore we determine whether to recognize a duty of reasonable care under the specific circumstances identified in § 317, we first consider whether those circumstances are [arguably] present in this case.
Page 229
Because § 317 assumes the existence of an employment relationship as a predicate to liability, we first examine whether Clyde was a TNT employee when the harm in this case occurred. It is undisputed that Clyde was hired by TNT in 2008 and had worked for TNT for approximately one year before the accident occurred. It is also undisputed that TNT provided a pickup to Clyde. TNT contends . . . that Clyde’s employment was terminated in a phone conversation initiated by Damion Black, Clyde’s supervisor, on the day of the accident. In support of this claim in its motion for summary judgment, TNT presented deposition testimony from Black, as well as from Tim Greene, TNT’s owner and president, and Christina Greene, a former secretary at TNT. Each stated that Clyde’s employment had been terminated prior to the accident.
The Shafers, however, contend that the testimony of these witnesses is not credible. They point to inconsistencies in and among [their] testimonies . . . , as well as to the testimony of Clyde’s fiancée. The Shafers assert that the testimony of the TNT witnesses was a “post-hoc fabrication” made to avoid liability. [Authors’ note: The Court went on to engage in detailed discussion of inconsistencies in the witnesses’ deposition testimonies. Most of that discussion is omitted.]
[T]he Shafers have raised credibility issues with respect to TNT’s reason for terminating Clyde’s employment, the circumstances and content of the phone conversation between Clyde and Black on the day of the accident and alleged termination, documentation of Clyde’s employment status, and whether Black indicated to the responding officer at the scene of the accident that Clyde was a TNT employee. Viewing the evidence in the light most favorable to the Shafers [(as we are required to do in deciding whether summary judgment was appropriate)], and reserving the necessary credibility determinations for the jury, we find the Shafers have raised a genuine issue of fact as to whether Clyde’s employment had been terminated prior to the accident at issue in this case.
The district court’s analysis ended with its consideration of whether Clyde was employed by TNT at the time of the accident. However, . . . we [must] proceed to determine whether the Shafers have established a genuine issue of material fact with respect to the remaining elements of § 317. [I]t is undisputed that Mr. Clyde was using TNT’s vehicle at the time of the accident, which satisfies the first prong of § 317. Under the second prong, a plaintiff must show that the employer (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.
[N]either party introduced evidence to suggest that Clyde had independent authority to determine his employment responsibilities. On the contrary, the evidence presented suggests that Clyde’s duties were prescribed and controlled by [Black and Tim Greene]. The evidence introduced by the Shafers was sufficient to raise a genuine issue as to whether [Black and Greene] had knowledge of their ability to control Clyde and his use of the TNT vehicle.
We also conclude that the Shafers have raised a genuine issue as to whether TNT knew or should have known of the necessity and opportunity for exercising control over Clyde. [Christina Greene, whose responsibilities had included working with an outside firm that provided drug-testing services to TNT,] testified that “DUIs . . . are a huge concern” in assessing the fitness of a TNT employee, and that “we shouldn’t hire anybody with a DUI.” Although the testimonies of Tim and Christina Greene indicate that TNT tested its employees for drug use, their testimonies diverge with respect to the character of TNT’s drug-testing program and whether Clyde was tested at the time he was hired. Although Tim Greene stated that every prospective employee must pass a drug test as a condition of employment at TNT, and that Clyde had done so, Christina Greene testified that employees were not subject to a pre-employment drug test, and that Clyde had not been tested.
Although Ms. Greene became aware that Clyde was on probation after he was hired, she did not make an inquiry as to the offense giving rise to Clyde’s probation. In the proceedings below, the Shafers produced documentary evidence indicating that, prior to his employment with TNT, Clyde had received two DUI convictions; one in 1999 and another in 2000. He had also been convicted of possession of a controlled substance in 2005. This evidence indicates that Clyde had a history of substance abuse issues and calls into question his fitness as a TNT employee. Despite the fact that Mr. Clyde’s DUI convictions were several years old, it is the responsibility of the [jury] to determine whether those convictions could give rise to knowledge of the necessity of exercising control over Clyde’s use of the TNT vehicle. In light of Ms. Greene’s testimony that “DUIs . . . are a huge concern” and that TNT “shouldn’t hire anybody with a DUI,” the Greenes’ apparent agreement that a drug-testing policy was prudent, and the character of Clyde’s prior criminal offenses, we find the Shafers have raised a genuine issue with regard to whether TNT should have known of the necessity of controlling Clyde’s use of a company vehicle.
Because we have concluded that the duty [contemplated by § 317] is applicable to the facts of the present case, our next task is to consider whether this duty should be recognized in Wyoming. Generally, in determining whether a duty exists, we employ [factors such as] the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, and . . . whether the relationship between the parties is such that “the community will impose a legal obligation upon one for the benefit of the other.” [Citation omitted.] [O]ur research confirms that . . . the great majority of jurisdictions that have considered whether to impose the duty identified in § 317 [have imposed such a duty]. [Citations omitted.]
Page 230
We find no reason to depart from the conclusions reached in these jurisdictions as to whether societal norms impose a duty upon an employer to exercise reasonable care for the benefit of third parties in supervising employees while on the employer’s premises or while using the employer’s [motor vehicle or other] chattel. Further, we are satisfied that the policy considerations relevant to imposition of a duty are weighted in favor of recognizing an employer’s duty to supervise its employees as set forth in § 317. Accordingly, we agree with the Shafers that an employer’s failure to supervise an employee using an employer’s chattel while acting outside the scope of his employment gives rise to the potential for liability. Because the Shafers have demonstrated a genuine issue as to the existence of each of the elements identified in § 317, we reverse the district court’s grant of summary judgment with respect to the Shafers’ claim of negligent supervision.
The Shafers also contend that TNT was negligent in entrusting the vehicle to Clyde. [In a previous case, we] explained the theory of negligent entrustment [by quoting the Restatement (Second) of Torts § 390, which reads as follows:]
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
The determination of liability for negligent entrustment is not tied to the existence of an employment relationship, and does not depend on whether an employee is acting in the scope of his employment when harm occurs. Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties. Consequently, . . . we need only determine whether a genuine issue exists as to (1) whether TNT supplied the chattel to Clyde, and (2) whether TNT knew or should have known that he was likely to use the TNT pickup in a manner involving an unreasonable risk of harm.
[I]t is undisputed that TNT supplied the pickup Clyde was driving at the time of the accident. Further, we find that the Shafers have presented a genuine issue as to whether TNT knew or should have known that the vehicle was entrusted to [a person likely to use it in a way that would create an unreasonable risk of harm]. Our analysis of this element is similar to the determination of whether TNT knew or should have known of the necessity and opportunity for exercising control, as set forth in the above discussion of liability [for negligent supervision]. As in that analysis, we find that Ms. Greene’s testimony relating to the relevance of DUI convictions to employee fitness, the existence of a drug-testing program at TNT, and Clyde’s prior DUI and controlled substance convictions constitute specific facts and evidence which raise a genuine issue as to whether TNT should have known that entrustment of a vehicle to Clyde was likely to involve an unreasonable risk of harm.
The district court did not address the elements of negligent entrustment in granting TNT’s motion for summary judgment. Instead, the court determined that the claim for negligent entrustment was not viable because Mr. Clyde’s employment had been terminated prior to the accident. As our previous discussion indicates, . . . a genuine issue of fact remains as to whether Clyde’s employment with TNT had, in fact, been terminated prior to the accident. We must reject the district court’s analysis of the Shafers’ negligent entrustment claim.
District court’s grant of summary judgment in favor of TNT reversed; case remanded for further proceedings.
LO7-3
Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.
LO7-4
Explain what goes into a determination of whether a defendant breached the duty of reasonable care.
Was the Duty Breached? Assuming that the defendant owed the plaintiff a duty of reasonable care, whether the defendant satisfied or instead breached that duty depends upon the application of the reasonable person test. This test is objective in two senses. First, it compares the defendant’s actions with those that a hypothetical person with ordinary prudence and sensibilities would have taken (or not taken) under the circumstances. Second, the test focuses on the defendant’s behavior rather than on the defendant’s subjective mental state. The reasonable person test has another noteworthy characteristic: flexibility. In contemplating that courts consider all of the relevant facts and circumstances, the test allows courts to tailor their decisions to the facts of the particular case being decided.
When applying this objective yet flexible standard to specific cases, courts consider and balance various factors. The most important such factor is the reasonable foreseeability of harm. This factor does double duty, helping to determine not only whether the defendant owed the plaintiff a duty (as noted above) but also what the defendant’s duty of reasonable care entailed in the case at hand. Suppose that Donald falls asleep at the wheel and causes a car accident in which another motorist, Peter, is injured. Falling asleep at the wheel involves a foreseeable risk of harm to others, so a reasonable person would remain awake while driving. Because Donald’s conduct fell short of this behavioral standard, he has breached a duty to Peter. However, this probably would not be true if Donald’s loss of awareness resulted from a sudden, severe, and unforeseeable blackout. On the other hand, there probably would be a breach of duty if Donald was driving and had a blackout to which a doctor had warned him he was subject.
Negligence law does not require that we protect others against all foreseeable risks of harm. Instead, the risk created by the defendant’s conduct need only be an unreasonable one. In determining the reasonableness of the risk, courts consider other factors besides the foreseeability of harm. One such factor is the seriousness or magnitude of the foreseeable harm. As the seriousness of the harm increases, so does the need to take action to avoid it. Another factor is the social utility of the defendant’s conduct. The more valuable that conduct, the less likely that it will be regarded as a breach of duty. A further consideration is the ease or difficulty of avoiding the risk. Negligence law normally does not require that defendants make superhuman efforts to avoid harm to others.
To a limited extent, negligence law also considers the personal characteristics of the defendant. For example, children are generally required to act as would a reasonable person of similar age, intelligence, and experience. A physically disabled person must act as would a reasonable person with the same disability. Mental deficiencies, however, ordinarily do not relieve a person from the duty to conform to the usual reasonable person standard. The same is true of voluntary and negligent intoxication.
Finally, negligence law is sensitive to the context in which the defendant acted. For example, someone confronted with an emergency requiring rapid decisions and action need not employ the same level of caution and deliberation as someone in circumstances allowing for calm reflection and deliberate action.
The Currie case, which follows, focuses mainly on the duty and breach of duty elements of a negligence claim. It also furnishes an introduction to concepts dealt with more fully later in the chapter.
Currie v. Chevron U.S.A., Inc. 2008 U.S. App. LEXIS 4269 (11th Cir. 2008)
Acting in her own right and as personal representative of the estate of her deceased daughter (Nodiana Antoine), Tracye Currie sued Chevron U.S.A., Inc., and Chevron Stations, Inc. (collectively, “Chevron”), on the theory that Chevron negligently caused Antoine’s death. The facts giving rise to the case are summarized here.
For approximately two years, Antoine and Anjail Muhammad had had a close personal relationship. The relationship between the two women was a stormy one, with Muhammad sometimes threatening to inflict physical harm on Antoine. One morning in 2003, Muhammad and Antoine were in Muhammad’s car, which Muhammad had parked in a restaurant parking lot in Marietta, Georgia. According to a statement Muhammad later made to the police, Muhammad and Antoine became involved in an argument, during which Antoine said that she wanted to end their relationship. Muhammad also said in her statement that Antoine left the car and started walking toward a Chevron gas station across the street to call her family. Muhammad followed her, and the women continued arguing as they walked across the street.
Pamela Robinson, a customer at the Chevron station, testified at the trial in Currie’s case that when she pulled into the station, she saw Muhammad and Antoine approach the station. Muhammad was pulling on Antoine’s neck or the collar of her clothing and essentially dragging Antoine. Robinson also stated that Muhammad appeared to tighten her grip when Antoine tried to pull away. Robinson, who watched the two women move in the direction of gas pump number one, went inside the station when she realized that the pump she was seeking to use had to be activated by a Chevron cashier before it would work. Jyotika Shukla was the cashier at the station on that day. Robinson testified that she entered the station and “told [Shukla] immediately that there was something going on with the two young ladies out here and that she needed to contact the police immediately.” Robinson explained that she then pointed out the two women to Shukla.
Shukla testified at the trial that she did not know there was anything wrong outside until Robinson came into the station and told her, though an earlier statement by Shukla to the police indicated that Shukla saw the women before Robinson came into the station. Regardless of when she first saw the women, Shukla said that she did see the two women “verbally fighting” and that one woman was holding the other by her shirt. Shukla did not call the police because, according to her testimony, she thought the two women were or would be leaving the Chevron property.
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Evidence adduced at the trial indicated that when customers at the Chevron station sought to use a gas pump, they had to lift a lever on the pump. A beeping sound inside the station would then inform the cashier that a customer had lifted the lever. In order for the customer to receive gas through the pump, the cashier would then have to hit the “authorize pump” button. After the pump was authorized, the beeping sound would stop.
The evidence established that Shukla authorized gas pump number one by pushing the appropriate button inside the station. This authorization of the pump enabled Muhammad to use it, even though Muhammad did not have a car on the premises. Shukla testified at trial that she authorized pump number one before Robinson came into the station and before she (Shukla) saw the women fighting, but Shukla’s deposition testimony and an earlier statement given to the police indicated that she could not remember whether she knew about or had seen the fighting before she authorized the pump.
Robinson’s testimony suggested that Shukla authorized a pump after Robinson told Shukla about the two women fighting. Based on her prior experience of working at a gas station, Robinson recognized that a beeping sound informed the cashier that a gas pump needed to be activated. Robinson testified that she heard a beeping sound when she entered the Chevron station. She also testified that the beeping sound stopped “right after” she told Shukla to call the police. Robinson also stated that she did not ask Shukla to authorize her gas pump until after she talked to Shukla about the two women fighting outside and showed Shukla where they were standing—by gas pump number one. Moreover, there were no other customers waiting for other pumps to be authorized.
Shukla’s testimony was inconsistent about whether she looked at gas pump number one before authorizing it. She first testified that she did not remember whether she had looked at pump number one before authorizing it, but later she said “[m]aybe yes.” In her statement to the police, Muhammad said that Shukla looked at pump number one before authorizing it. Muhammad stated that “[e]verybody was really helpful like the lady . . . in the store . . . . [S]he just turned the pump on.” When a police detective asked, “Even though ya’ll didn’t have a car?” Muhammad responded, “Didn’t even have a car right next to it, she just turned it on, she looked at us and just turned the pump on.”
After Shukla authorized pump number one, Muhammad sprayed 65 cents worth of gasoline on Antoine. Robinson testified that she exited the station to return to her car to pump gas and immediately saw the two women “in the same position with [Muhammad] holding [Antoine].” Before Robinson got to her car, Muhammad asked Robinson whether she had a cigarette lighter. Robinson said she did not. She then watched the two women as they left the Chevron station, with Muhammad still pulling Antoine by her shirt.
According to Muhammad’s statement to the police, she and Antoine left the Chevron station and went back to Muhammad’s car. Muhammad then found a cigarette lighter in the car and used the lighter to set Antoine on fire. Antoine ran through the parking lot while on fire and tried to roll over in a grassy area in an effort to put out the flames. A passerby called 911, and Antoine was taken to the hospital. Several weeks later, Antoine died as a result of the burns she had suffered. Muhammad, who confessed to police that she set Antoine on fire, was later indicted on criminal charges of murder, aggravated battery, aggravated assault, and arson.
In Currie’s wrongful death lawsuit against Chevron, Currie alleged that Shukla negligently authorized the gas pump used by Muhammad and that Antoine died as a result. Under the respondeat superior principle discussed in Chapter 36 of this text, Chevron would be liable for any negligence on the part of its employee, Shukla, if that negligence occurred within the scope of Shukla’s employment. A federal district court jury returned a $3,500,000 verdict in Currie’s favor. The court issued a judgment against Chevron for $2,625,000, an amount that reflected a 25 percent reduction from $3,500,000 because of the jury’s finding that Antoine’s own negligence accounted for 25 percent of the reason why she was killed. (Later in this chapter, you will learn about the comparative negligence principle applied by the court in reducing the amount of damages awarded.) Chevron unsuccessfully moved for judgment as a matter of law or, in the alternative, a new trial. Chevron then appealed to the U.S. Court of Appeals for the Eleventh Circuit.
Per Curiam
In this diversity case controlled by Georgia law, . . . Currie contended at trial that Chevron’s Shukla negligently activated the gas pump for Muhammad only after: (1) Shukla saw Muhammad pulling Antoine around the Chevron station’s property by her shirt and thought that something was wrong; (2) Shukla saw that Muhammad and Antoine did not have a vehicle; and (3) customer Pamela Robinson warned Shukla that there was a problem with the two women outside, asked Shukla to call the police, and showed Shukla where the two women were standing by gas pump number one. Currie claimed that, given this evidence, Shukla should have foreseen that Antoine would suffer some injury as a result of Shukla’s activating the gas pump for Muhammad. On appeal, Chevron argues that . . . Muhammad’s actions were not a reasonably foreseeable consequence of Shukla’s negligence; [that] Antoine failed to exercise ordinary care to avoid the consequences of Shukla’s negligence; [and that] Antoine’s negligence was equal to or greater than Shukla’s negligence.
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A cause of action for negligence in Georgia must contain the following elements: (1) a legal duty to conform to a standard of conduct for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage resulting from the breach of the legal duty. In order to establish a breach of the applicable standard of conduct, there must be evidence that the alleged negligent act (or omission) created a foreseeable, unreasonable risk of harm. As to foreseeability of injury, Georgia courts have stated that “‘in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.’” [Citations omitted.]
In Georgia, questions of negligence, proximate cause, and foreseeability are generally for the jury. [After reviewing the record in this case, we] conclude that reasonable minds could differ as to whether Shukla was aware at the moment she authorized gas pump number one that her action would create a foreseeable risk of injury to Antoine. There was evidence from which the jury could have inferred that Shukla was aware that Muhammad and Antoine were involved in a serious fight on the Chevron station’s property. In her statement to police on the day of the incident, Shukla said that she saw the two women walking on the station’s property, that Muhammad had “grabbed” and “pulled” Antoine by the front of her shirt, and that Shukla “thought something was wrong.” Shukla also testified at trial that she saw the women fighting on the Chevron station’s property. Robinson’s testimony confirmed Shukla’s observation that the fight was serious. Robinson testified that [Muhammad tightened her grip on Antoine] when Antoine try to pull away from her. Robinson [also testified] that Muhammad then pulled Antoine “down to the ground like an animal.”
There also was evidence from which the jury could have found that Shukla was aware that Muhammad and Antoine were involved in a serious fight at the Chevron station before she activated gas pump number one for Muhammad. [In addition,] there was evidence from which the jury could have concluded that Shukla looked at Muhammad before authorizing gas pump number one. Muhammad told police on the day of the incident that “. . . she looked at us and just turned the pump on. . . . ” Based on Muhammad’s statement and Shukla’s own testimony, the jury could have found that Shukla looked at gas pump number one before she authorized it, saw Muhammad (whom Shukla had seen fighting with Antoine on the station’s property and had recognized did not have a car), and nevertheless authorized gas pump number one for Muhammad.
[Considering] the totality of this evidence … , the jury could have found that the beeping sound that Robinson heard inside the Chevron station was Muhammad seeking authorization of gas pump number one and that Shukla looked at Muhammad and authorized gas pump number one for her (thus stopping the beeping sound) after Shukla’s conversation with Robinson. The jury also could have found that Shukla was aware at the time she authorized gas pump number one for Muhammad that: (1) Muhammad had been pulling Antoine around the Chevron station’s property by her shirt as they were fighting; (2) the fight was sufficiently serious that Shukla herself thought something was wrong and that Robinson came into the station to warn Shukla that something was going on with the two women outside and to ask her to call the police; (3) Muhammad and Antoine were fighting by gas pump number one; and (4) Muhammad and Antoine did not have a car on the station’s property. Thus, we conclude that there was, at the very least, a substantial conflict in the evidence such that reasonable and fair-minded jurors might reach different conclusions as to whether Shukla was aware before she authorized gas pump number one that her negligent action would create a foreseeable risk of injury to Antoine.
Chevron presented expert testimony from Rosemary Erickson, Ph.D., a forensic sociologist, that it was not reasonably foreseeable to Shukla that Muhammad would douse Antoine with gas and set her on fire. Dr. Erickson based her opinion on a review of the depositions, the police records, the low crime rate in the area surrounding the Chevron station, the lack of previous violent crimes at this specific Chevron station, and the rarity of the particular crime that occurred here. In addition to Dr. Erickson’s testimony, Shukla testified that she had never [witnessed] a crime or fire at the Chevron station before that day and never had to call the police. [The] former Chevron station manager testified that there had not been any criminal activity at the Chevron station in his eight to ten years working there before this incident.
However, in cross-examining Dr. Erickson, plaintiff’s counsel asked, “You would agree with me . . . would you not, that if something is going on at a gas station and a clerk sees one person holding another at a gas pump and there’s no car and no container, that it’s foreseeable that the gas may be used inappropriately and harm can result . . . . ” Dr. Erickson replied, “If all those factors were in evidence.” Thus, even from Chevron’s own witness, there was in effect testimony to support Currie’s claim that Shukla should not have authorized the gas pump after Shukla saw Muhammad and Antoine fighting (or was told by Robinson they were fighting) and where Muhammad and Antoine had no car or gas container. [In addition, both the former station manager and Robinson[, who had worked at a gas station,] testified that they would not activate a gas pump if they saw people at the gas pump without a car or gas can.
In arguing that this incident was not foreseeable, Chevron cites Georgia premises liability cases providing that property owners have a duty to exercise ordinary care to protect invitees from foreseeable third-party criminal attacks where there are prior similar criminal acts occurring on the premises that put the property owner on notice of the dangerous condition. Chevron argues that the criminal attack by Muhammad on Antoine was not foreseeable because this particular Chevron station was in a low crime area and had not been the site of any criminal activity in previous years, much less violent crime.
First, while Currie raised a premises liability theory at trial, her primary theory of liability was that given the particularly serious events unfolding before Shukla and given Robinson’s warning, Shukla then committed her own affirmative negligent act in activating gas pump number one for Muhammad, not that Chevron breached its duty to Antoine to keep its premises safe generally. Second, the lack of prior criminal activity at this Chevron station does not wholly foreclose the foreseeability issue. Even in cases grounded solely on a premises liability theory, Georgia courts have stated that “a showing of prior similar incidents on a proprietor’s premises is not always required to establish that a danger was reasonably foreseeable. An absolute requirement of this nature would create the equivalent of a one free bite rule for premises liability, even if the proprietor otherwise knew that the danger existed.” [Citation omitted.] This Court applied this same reasoning in a premises liability case to conclude that there was a jury question of whether hostilities throughout the evening of which bowling alley employees were, or should have been, aware were sufficient to make it reasonably foreseeable to them that a fight would erupt, even though there had been no similar prior altercations on the premises. [Citation omitted.] Similarly, in this case, there was a sufficient conflict in the evidence for reasonable minds to differ as to whether the particular serious and exigent events unfolding right before Shukla at the Chevron station that morning, together along with Robinson’s warning, should have put her on notice that activating the gas pump for Muhammad would pose an unreasonable risk of harm to Antoine, even though there was no history of prior similar incidents at this specific Chevron station.
Therefore, we cannot say that the district court erred in denying Chevron’s motion for judgment as a matter of law or a new trial.
________
[Note: In a later portion of the opinion not included here, the Eleventh Circuit concluded that the district judge had correctly instructed the jury on issues related to Antoine’s own failure to use reasonable care, that the jury’s assignment of a 25 percent degree of responsibility to Antoine was supported by the evidence, and that the court had therefore properly reduced the award of damages by 25 percent.]
Judgment in favor of Currie affirmed.
Ethics in Action
Suppose that during regular work hours, an employee of XYZ Co. commits a sexual assault or other violent attack upon a member of the public. The employee, of course, is liable for the intentional tort of battery (about which you learned in Chapter 6), as well as a criminal offense. Although the doctrine of respondeat superior makes employers liable for their employees’ torts when those torts are committed within the scope of employment, XYZ is quite unlikely to face respondeat superior liability for its employee’s flagrantly wrongful act because a sexual assault or violent attack, even if committed during regular work hours, presumably would be outside the scope of employment.
However, as the principles explained in this chapter suggest, XYZ could be liable for its own tort if XYZ was negligent in hiring, supervising, or retaining the employee who committed the attack. A determination of whether XYZ was negligent would depend upon all of the relevant facts and circumstances.
Regardless of whether XYZ would or would not face legal liability, the scenario described above suggests related ethical questions that may confront employers. Consider the following:
Does an employer have an ethical obligation to take corrective or preventive action when the employer knows, or has reason to know, that the employee poses a danger to others?
Does it matter whether the employer has irrefutable evidence that the employee poses a danger, or whether the employer has only a reasonable suspicion to that effect?
If the employer has an ethical obligation to take corrective or preventive action, to whom does that obligation run and what should that obligation entail?
Does the employer owe any ethical duty to the employee in such situations?
You may find it helpful to consider these questions through the frames of reference provided by the ethical theories discussed in Chapter 4 (e.g., utilitarianism, rights theories, and profit maximization). Then compare and contrast the results of the respective analyses.
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Special Duties In some situations, courts have fashioned particular negligence duties to supplement the general reasonable person standard. When performing their professional duties, for example, professionals such as doctors, lawyers, and accountants generally must exercise the knowledge, skill, and care ordinarily possessed and employed by members of the profession.1 Also, common carriers and (sometimes) innkeepers are held to an extremely high duty of care approaching strict liability when they are sued for damaging or losing their customers’ property. Many courts say that they also must exercise great caution to protect their passengers and lodgers against personal injury—especially against the foreseeable wrongful acts of third persons. This is true even though the law has long refused to recognize any general duty to aid and protect others from third-party wrongdoing unless the defendant’s actions foreseeably increased the risk of such wrongdoing. Some recent decisions have imposed a duty on landlords to protect their tenants against the foreseeable criminal acts of others.
LO7-5
Explain the differences among the respective duties of care owed by owners or possessors of property to invitees, licensees, and trespassers.
Duties to Persons on Property Another important set of special duties runs from possessors of real estate (land and buildings) to those who enter that property. Negligence cases that address these duties are often called premises liability cases. Traditionally, the duty owed by the possessor has depended on the classification into which the entering party fits. The three classifications are:
Invitees. Invitees are of two general types, the first of which is the “business visitor” who is invited to enter the property for a purpose connected with the possessor’s business. Examples include customers, patrons, and delivery persons. The second type of invitees consists of “public invitees” who are invited to enter property that is held open to the public. Examples include persons using government or municipal facilities such as parks, swimming pools, and public offices; attendees of free public lectures and church services; and people responding to advertisements that something will be given away. The entry, however, must be for the purpose for which the property is held open.
A possessor of property must exercise reasonable care for the safety of his invitees. In particular, he must take appropriate steps to protect an invitee against dangerous on-premises conditions that he knows about, or reasonably should discover, and that the invitee is unlikely to discover.
Licensees. A licensee enters the property for her own purposes, not for a purpose connected with the possessor’s business. She does, however, enter with the possessor’s consent. In some states, social guests are licensees, though today they are more commonly classified as invitees. Other examples of licensees are door-to-door salespeople, solicitors of money for charity, and sometimes persons taking a shortcut across the property. As these examples suggest, consent to enter the property is often implied. The possessor usually is obligated only to warn licensees of dangerous on-premises conditions that they are unlikely to discover.
Trespassers. A trespasser enters the land without its possessor’s consent and without any other privilege. Traditionally, a possessor of land owed trespassers no duty to exercise reasonable care for their safety; instead, there was only a duty not to willfully and wantonly injure trespassers once their presence was known.
Recent years have seen some tendency to erode these traditional distinctions. Most notably, many courts no longer distinguish between licensees and invitees. These courts hold that the possessor owes a duty of reasonable care to persons regardless of whether they are licensees or invitees. Some courts have created additional duties that possessors owe to trespassers. For example, a higher level of care is often required as to trespassers who are known to regularly enter the land, and as to children known to be likely to trespass.
The following two cases deal with the duty owed to business invitees. In Dick’s Sporting Goods, Inc. v. Webb, the court examines that duty in the context of a potentially dangerous physical condition on the business premises. (The Dick’s decision also touches on other negligence issues addressed in more fully later in the chapter.) In Lord v. D & J Enterprises, Inc., the court considers whether the duty to invitees may obligate the business owner to take appropriate action to protect customers against on-the-premises criminal acts of third parties.
Dick’s Sporting Goods, Inc. v. Webb 413 S.W.3d 891 (Ky. Sup. Ct. 2013)
Betty Webb ventured out in the rain to shop at a Dick’s Sporting Goods store. Upon her arrival, Webb noticed puddles in the parking lot and proceeded cautiously to the store’s entrance. As she entered the store, she stepped onto floor mats that Dick’s had placed in the entryway to soak up water tracked in by customers. Webb saw that the floor mats had shifted from their customary parallel formation into a “V” shape. A visible pool of water had formed in the center of the “V.” According to Webb, the mats were wet and spongy. There were no signs at the front of the store to warn customers that the floor could be wet.
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A crowd of other customers entering the store at the same time surrounded Webb. In an attempt to avoid the visible pool of water in the “V,” Webb stepped from one of the mats to a tile that appeared to her to be dry but was in fact wet. As she stepped onto the tile, she slipped and fell forward, injuring her knees, arms, and shoulders. A store employee witnessed the fall.
Webb later filed a negligence lawsuit against Dick’s in a Kentucky trial court. In her deposition, she stated that there were a number of fellow customers entering the store at the same time, which made it difficult for her to avoid the pool without pausing and waiting for people to pass. Webb acknowledged that her shoes were wet and that the lighting in the store was bright. Webb also admitted that if Dick’s had placed a sign near the entrance to warn of a wet floor, the warning probably would not have dissuaded her from entering the store.
Dick’s moved for summary judgment, asserting that the wet floor was an open-and-obvious condition that eliminated any duty potentially owed to Webb. The trial court agreed and granted summary judgment in favor of Dick’s. Webb appealed to the Kentucky Court of Appeals, which reversed the lower court’s decision after concluding that according to a precedent decision from the Supreme Court of Kentucky, a property owner may still owe a duty of reasonable care to persons lawfully on the premises even when a danger on the property is open and obvious. The Court of Appeals held that Dick’s had a duty to take reasonable steps to eliminate or reduce the open-and-obvious hazard and that whether Dick’s satisfied its duty was a question for the jury. Dick’s appealed to the Supreme Court of Kentucky.
Minton, Chief Justice
On appeal, Dick’s argues that the trial court properly granted summary judgment because Webb presented no evidence to show [that Dick’s owed her] an affirmative duty either to warn of or to remedy the pooled water. Webb responds that the injury she sustained was foreseeable by Dick’s and, as a result, the store was required to exercise reasonable care in maintaining its premises.
Summary judgment is an extraordinary remedy to be used only “to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at trial warranting a judgment in his favor against the movant.” [Citation omitted.] Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
The material facts of this case are undisputed. As a result, the remaining issue is whether Dick’s owed—and if so, breached—a duty to Webb to exercise reasonable care. Up to this point in the litigation, this case has been argued as one involving an open-and-obvious hazard. But we see the circumstances differently. [We do not regard the case as one involving an open-and-obvious danger. However, if we conclude that Dick’s owed a duty of reasonable care but reach that conclusion for reasons other than those noted by the Court of Appeals in recognizing a duty], we can affirm on any grounds supportable by the record.
Simply put, the case before us does not present an open-and-obvious hazard. [Authors’ note: The court engaged in considerable discussion of what constitutes an open-and-obvious hazard. In that discussion and resulting analysis, most of which is omitted here, the court concluded that the seemingly dry—but in fact wet—tile on which Webb slipped was not an open-and-obvious hazard despite the presence of water near it. According to the court, the fact that the tile appeared to be dry meant that the danger posed by the tile was not obvious to Webb and that she therefore did not know the extent of the danger. Nor would a reasonable person in Webb’s position have found the hazard posed by the tile to be apparent.]
Generally speaking, a landowner is not exempt from the overarching duty of reasonable care that pervades our negligence law. More specifically with regard to invitees [such as customers or other similar persons who lawfully are on the property], we have routinely held that landowners [or] possessors . . . are required [to use reasonable care to] to maintain the premises in a reasonably safe condition.
Dick’s, as a possessor of land, has a duty to maintain reasonably safe premises for its patrons. This duty involves the responsibility to “discover unreasonably dangerous conditions on the land and either correct them or warn of them.” [Citation omitted.] [When it applies, the] open-and-obvious doctrine merely eliminates the duty to warn of a condition because the condition itself serves as ample warning. But when the condition is neither known nor obvious to the invitee, as [in this case], the full weight of the duty to maintain reasonably safe premises remains. Accordingly, with no known or obvious danger present, a landowner owes a duty of reasonable care to those individuals invited onto the landowner’s property, and the landowner must inform invitees of or eliminate any unreasonable dangers that would otherwise be undetected.
Under the circumstances present in this case, with water being tracked in as a result of the natural conditions outside, we find Lyle v. Megerle, 109 S.W.2d 598 (Ky. Sup. Ct. 1937), to be analogous. In Lyle, Mrs. Lyle entered a local butcher shop where, “[a]fter a season of snow and cold weather,” “snow had been melting throughout the day,” and the “slush had been tracked in by customers.” The floor of the butcher shop was tiled, and the accumulation of slush was very slick. Mrs. Lyle, not noticing the condition of the floor, took four or five steps into the shop before slipping, falling, and sustaining injury. Mrs. Lyle brought [a negligence] suit against the butcher shop. But the trial court granted [a directed verdict] in the butcher shop’s favor.
The Supreme Court of Kentucky disagreed with the trial court in Lyle. In its opinion, the Supreme Court noted that a defendant is “under the duty of exercising ordinary care to have the floor where the plaintiff fell in a reasonably safe condition for her use.” [Noting] that the slippery condition of the floor had been developing for a considerable period of time in plain view of the defendant, [the Supreme Court held that “[t]he duty, in respect of maintaining the premises in a safe condition, is an active, affirmative, and positive one.”] According to the court, it was “the failure to act which created the condition.”
We see no meaningful distinction between Lyle and the facts of this case. Webb slipped and fell on water allegedly tracked in from outside during inclement weather similar to Mrs. Lyle’s slipping on slush that was tracked in because of changing outdoor conditions. Furthermore, it was potentially the failure to act by Dick’s that created the condition of the tiles being wet and the mats shifting into a “V.”
Accordingly, under our established case law, Dick’s had an affirmative duty [to use reasonable care] to maintain the premises in a reasonably safe condition. So the trial court erred when it found that Dick’s owed no duty to Webb as a matter of law. Webb was allegedly exposed to an unreasonable risk of harm that was fully foreseeable to Dick’s Sporting Goods. And it was foreseeable that a customer may not be able to detect whether the tile was wet or not upon a cursory inspection. Indeed, in Lyle, the court aptly stated, “The smooth surface and impervious quality of tile makes the accumulation of such substance as described in this case a situation from which such an accident should well have been anticipated. It would be an extreme view to take that reasonable men could not have foreseen the possibility of a customer slipping on [water] on a smooth tile floor.”
Dick’s argues that it is not liable [because, in its view,] Webb was aware of the water on the floor. [T]he current state of the record refutes the notion that Webb was aware of any water spreading to nearby tiles. Webb’s testimony is clear that she was trying to step beyond the hazard presented by the pool of water in the “V” when she stepped off the mats, and she was unaware that the tile she chose was wet until she slipped on it. As we previously stated, the adjacent tiles provided no warning of danger.
Perhaps one could argue that simply because of the rain outside, the inherent nature of water, or the wet soles of her shoes, Webb should have been aware that water would be present in other areas of the store beyond the mats. The mere occurrence of inclement weather outside and the presence of a puddle near the entryway cannot put a customer on notice that the entire surrounding floor is dangerous, or that the floor throughout the entire store is dangerous. That is not part of this court’s calculus when determining whether summary judgment was appropriate, nor should it be. The weight to be given to such factors is within the province of the jury. Additionally, the mentioned factors may be useful to argue Webb was negligent. But as we mention below, Webb’s own negligence [, if any,] is not a bar to her claim or grounds for summary judgment.
Dick’s also points out that Webb could have waited for other customers to pass and then continued on the mats rather than stepping onto the adjacent tile. Although this is a valid point, it does not weigh on whether Dick’s has a duty. A duty most certainly exists. Instead, Webb’s decision to abandon the mats weighs on comparative fault, which is an issue more properly resolved by the jury rather than via summary judgment. We concede that, as Dick’s argues, Webb could have endured a brief delay and allowed fellow customers to pass in order to continue walking on the mats. But a plaintiff’s failure, when deciding among various behaviors, to elect arguably the most reasonable option does not warrant summary judgment for the defendant. Adopting a debatably less reasonable alternative course of action may result in a finding of negligence against the plaintiff, but the mere finding of negligence does not bar her claim under our comparative negligence regime. To hold otherwise would resurrect contributory negligence.
Summary judgment was improper in this case. Dick’s had an affirmative duty to Webb. The jury should have been allowed to consider whether Dick’s exercised reasonable care in maintaining its premises.
Court of Appeals decision in favor of Webb affirmed; case remanded for trial on Webb’s negligence claim.
Lord v. D & J Enterprises, Inc. 757 S.E.2d 695 (S.C. Sup. Ct.)
D & J Enterprises, Inc., operates businesses involving check cashing, pay-day lending, and motor vehicle title lending. One of its businesses is Cash on the Spot, which is located in Rock Hill, South Carolina. For the protection of employees, Cash on the Spot is outfitted with iron bars on the windows of its building and bulletproof glass on its tellers’ windows.
On February 14, 2008, Ida Lord went to Cash on the Spot to retrieve money that had been wired to her. As Lord approached a teller’s window, a man seated at a nearby table stood up, reached under his clothing, pulled out a pistol, and shot Lord in the head and back. The man then demanded money as he slid his weapon through the opening in the teller’s window. The store manager, who was stationed behind the bulletproof window and had access to a silent alarm, called 911. The man fled the premises but was soon arrested. He was later identified as Phillip Watts, Jr.
Page 238
After Watts was apprehended, he confessed to committing seven armed robberies in Rock Hill and elsewhere in York County (where Rock Hill is located). Those robberies, which began in October 2007 and primarily targeted small businesses, were the subject of significant media coverage. Two of the publicized robberies occurred within three weeks prior to the Cash on the Spot incident. In those robberies, Watts shot two store clerks and a bystander. Before the February 14, 2008 incident in which Lord was shot, D & J’s president, Darrell Starnes (who oversaw the corporation’s day-to-day operations), warned his employees to be vigilant because “there is a madman on the loose.” Watts ultimately pleaded guilty but mentally ill to criminal charges in connection with the Cash on the Spot incident and the other armed robberies.
Lord filed a negligence lawsuit against D & J in a South Carolina court in an effort to obtain damages for what she described as the “catastrophic brain injuries” she suffered in the shooting. She alleged that D & J breached its duty to use reasonable care to protect her while she was at Cash on the Spot. D & J later moved for summary judgment, arguing that it had no duty to protect Lord from the injuries directly caused by Watts. It was not foreseeable that Watts would shoot Lord, D & J contended, because Watts appeared to be a regular customer, because the incident lasted less than six seconds, and because there had not been prior instances of attempted armed robberies or acts of violence at Cash on the Spot. In opposing D & J’s motion, Lord offered the deposition testimony of D & J officers and employees, an affidavit from a private security expert who opined that D & J should have had a security guard stationed at Cash on the Spot, and evidence of media coverage of the earlier robberies committed by Watts.
Concluding that D & J did not owe a duty to Lord, the trial court granted summary judgment in favor of D & J. After Lord appealed to the South Carolina Court of Appeals, the Supreme Court of South Carolina certified the case for resolution by that court rather than the Court of Appeals.
Beatty, Justice
In this premises liability case involving a third-party criminal act, Lord . . . asserts the court erred in granting summary judgment to D & J because she presented . . . evidence showing a genuine issue of material fact as to each element of her negligence claim. Specifically, Lord asserts that: (1) D & J owed a duty to her as she was a business invitee on the premises of Cash on the Spot; (2) the risk of harm to her was foreseeable because D & J’s president admitted he knew before the shooting that “there was a madman on the loose” and reviewed procedures with D & J employees regarding a response to a potential armed robbery; (3) D & J failed to post a security guard at the entrance of Cash on the Spot despite the foreseen risk of a shooting; (4) the affidavit of private security expert Robert Clark established that the shooting of Lord “most probably would not have occurred if D & J had posted a security guard”; and (5) there is evidence that the shooting caused Lord to suffer profound neurological complications.
[S]ummary judgment [is to] be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Because summary judgment is a drastic remedy, it should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues.
Bass v. Gopal, Inc., 716 S.E.2d 910 (S.C. Sup. Ct. 2011) (Gopal II) . . . is used to determine a business owner’s duty to protect a patron based on the foreseeability of violent acts by third parties. Gopal II was a premises liability action that arose out of the shooting of Gerald Bass while he was a guest at the Super 8 Motel in Orangeburg, South Carolina. Gopal, Inc., a Super 8 franchisee, owned and operated the motel. [The shooter was someone who was at the motel for the apparent purpose of committing a robbery.] Bass filed a complaint alleging negligence [on the part of] Gopal, Inc. and Super 8. The defendants filed motions for summary judgment, which were granted by the circuit court. The South Carolina Court of Appeals affirmed. [Bass appealed to the Supreme Court of South Carolina.]
In [ruling on Bass’s appeal in] Gopal II, we considered whether the Court of Appeals erred in upholding the circuit court’s finding that Gopal, Inc., . . . did not have a duty to protect Bass from the criminal act of a third party. [We] noted that the threshold question in any negligence action is whether the defendant owed a duty to the plaintiff. [We stated that although] “an innkeeper is not the insurer of [the] safety of its guests,” an innkeeper “is under a duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.” The court [further] explained in Gopal II that “a business owner has a duty to take a reasonable action to protect its invitees against the foreseeable risk of physical harm.”
In assessing the foreseeability issue, the Gopal II court [adopted] a balancing test, which . . . acknowledges that duty is a flexible concept, and seeks to balance the degree of foreseeability of harm against the burden of the duty imposed. The court explained that “the more foreseeable a crime, the more onerous is a business owner’s burden of providing security.” Accordingly, “[u]nder this test, the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner, but their absence does not foreclose the duty to provide some level of security if other factors support a heightened risk.” The court found that the “the balancing approach appropriately weighs both the economic concerns of businesses and the safety concerns of their patrons.” By adopting this test, the court hoped to “encourage a reasonable response to the crime phenomenon without making unreasonable demands.”
Page 239
Applying the balancing approach to the facts of Bass’s case, the court found the Court of Appeals correctly affirmed the grant of summary judgment in favor of Gopal, Inc. In reaching this decision, the court determined that Bass presented “at least some evidence the aggravated assault was foreseeable” because Bass produced a CRIMECAST report that showed . . . the risk of rape, robbery, and aggravated assaults at the Super 8 as compared to the national average risk, the state average risk, and the county average risk. Based on this report, the court found “the especial high probability of crime at the Super 8 compared to the national and state averages raised at least a scintilla of evidence that the crime against [Bass] was foreseeable.”
The court, however, found Bass did not provide any evidence that Gopal Inc.’s preventative measures were unreasonable given the risk of criminal activity on the property. Although Bass presented the deposition testimony of an expert who “concluded the addition of a closed circuit camera or some type of additional security personnel would have been reasonable in light of his perceived risk,” the court found Bass “failed to provide any evidence that [Gopal, Inc.] should have expended more resources to curtail the risk of criminal activity that might have been probable.” Instead, the Court found determinative the expert’s statement that “if . . . this is [the] first time [a criminal incident occurred], there wasn’t enough data for [Gopal, Inc.] to say he really needed to spend a bunch of money on surveillance cameras, a bunch of money on a full-time security guard or parttime, or train his employees to do a guard tour.”
[Gopal II provides controlling insights on] how to determine (1) if a crime is foreseeable, and (2) the economically feasible security measures that are required to prevent the foreseeable harm. Applying the Gopal II balancing test [to the case at hand], we hold the circuit court erred in granting summary judgment to D & J. Viewing the evidence in the light most favorable to Lord, we find she presented [enough] evidence to withstand the motion for summary judgment as to her negligence claim against D & J.
To prevail on a negligence claim, a plaintiff must establish duty, breach, causation, and damages. The key determination in the instant case is whether D & J breached its duty to take reasonable action to protect Lord, its business invitee, against the foreseeable risk of physical harm. Regarding the foreseeability prong of Gopal II, Lord presented the deposition testimony of Starnes (D & J’s president) and Marsha Boyd, the manager of Cash on the Spot the day of the shooting. Starnes and Boyd testified they were aware of the prior robberies in York County because the local newspapers had covered the incidents. Prior to the shooting, Starnes discussed the robberies with his employees and warned them to “be on their toes to look out for suspicious people” because there was a “madman on the loose.” Based on the foregoing, we find, as did the circuit court, that Lord produced at least some evidence that the shooting was foreseeable.
[T]he question [then] becomes whether D & J’s preventative security measures were unreasonable given this risk. Lord primarily asserts that D & J should have posted a security guard at the entrance of Cash on the Spot. Although this court in Gopal II acknowledged the significant cost associated with hiring security guards absent evidence of prior crimes on the premises, we stated that a plaintiff may produce evidence of this prong through the testimony of an expert. Here, unlike the plaintiff in Gopal II, Lord presented expert testimony precisely on this point. Robert Clark, Lord’s expert in private security, reviewed the media coverage of the prior armed robberies, reviewed the deposition testimonies of Starnes and Boyd, and conducted a field investigation of the security measures used at Cash on the Spot. Based on his investigation, Clark opined that D & J “had a duty, in the exercise of reasonable care, to post a security guard at the entrance” of Cash on the Spot in order to “provide reasonable protection for its employees and customers against the threat of a serial armed robber who had shot two store clerks and a bystander in two previous armed robberies of businesses that fit the profile of D & J’s business.” He further stated, “The armed robbery attempt during which Ida Lord was shot most probably would not have occurred if D & J had posted a security guard at the entrance of its check cashing location.”
As we noted in Gopal II, “whether a business proprietor’s security measures were reasonable in light of a risk will, at many times, be identified by an expert.” Here, Lord presented such expert testimony. Under the specific facts presented in this case, we find the expert testimony was sufficient to create a question of fact for the jury.
[W]e conclude it is premature to deprive Lord of the opportunity to present her case to a jury. At this stage, it is not the role of the circuit court or this court to determine whether Lord will prevail on her negligence claim, but whether she presented [sufficient] evidence to withstand D & J’s motion for summary judgment.
We emphasize that our decision should not be construed as requiring all merchants to hire costly security guards. Instead, we merely find that it is for a jury to decide whether D & J employed reasonable security measures to fulfill its duty to protect Lord from the foreseeable risk of a shooting. Clearly, D & J recognized that it was susceptible to an armed robbery at Cash on the Spot, as it had installed security cameras and placed bars on the office windows. It also sought to protect its employees by placing them behind bulletproof glass, equipping them with panic buttons, and providing them with immediate access to a silent alarm. The circumstances of this case, however, presented a heightened risk of danger beyond the ordinary operation of Cash on the Spot. As evidenced by Starnes’s deposition testimony, there was a foreseeable risk of a shooting at Cash on the Spot given the rash of armed robberies that culminated in the shootings of store clerks and customers at nearby businesses. Under these unique facts, we cannot find that D & J was entitled to judgment as a matter of law on Lord’s cause of action for negligence.
Circuit court’s grant of summary judgment to D & J reversed; case remanded for trial regarding Lord’s negligence claim.
LO7-6
Explain what the doctrine of negligence per se does and when it applies.
Negligence Per Se Courts sometimes use statutes, ordinances, and administrative regulations to determine how a reasonable person would behave. Under the doctrine of negligence per se, the defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff (1) was within the class of persons intended to be protected by the statute or other law, and (2) suffered harm of a sort that the statute or other law was intended to protect against. In the Kaltman case, which follows, the court approves of the plaintiffs’ attempt to use the negligence per se principle against defendants that violated a public safety regulation.
Kaltman v. All American Pest Control, Inc. 706 S.E.2d 864 (Va. Sup. Ct. 2011)
Alvin and Gwendolyn Kaltman retained All American Pest Control, Inc. (AAPC) to treat and prevent pest infestation at their Virginia home on a quarterly basis. AAPC employee Patric Harrison performed one of the quarterly treatments. In a lawsuit that arose from Harrison’s actions and failures in performing this treatment, the Kaltmans brought a negligence per se claim against the defendants. The facts set forth here are as they were alleged in the complaint the Kaltmans filed in a Virginia court.
Three days before treating the Kaltmans’ home, Harrison had treated a commercial establishment with Orthene pesticide. After applying Orthene at that business, Harrison did not thoroughly clean his pesticide application equipment. As a result, he ended up applying a diluted spray of Orthene to the baseboards and adjoining floor surfaces throughout the Kaltmans’ home and to the concrete surfaces in the home’s basement and garage.
As the pesticide was being applied, the Kaltmans complained to Harrison about the unusual and extraordinarily pungent odor. Harrison told them that the smell would dissipate, but it did not. Later that day, the Kaltmans telephoned AAPC to report their concern about the overwhelming stench. They were told that Harrison had applied an inappropriate pesticide that had a very strong and unpleasant odor.
The Kaltmans reported the incident to the Virginia Department of Agriculture and Consumer Services (VDACS). During the investigation by VDACS, Harrison admitted that he applied an Orthene dilution to the Kaltmans’ home. Harrison also admitted that he falsified the pertinent work order by documenting that he applied different pesticides. Laboratory analyses performed by VDACS revealed concentrations of acephate—a toxic ingredient in Orthene PCO Pellets—in the Kaltmans’ home. Exposure to acephate has been shown to cause nerve damage and cancer in laboratory animals. Orthene PCO Pellets are not licensed for residential use by VDACS. The material safety data sheet required by law for Orthene PCO Pellets states that the product “is not for indoor residential use,” “is for use in places other than private homes,” and should not be used on “unpainted masonry floors in poorly ventilated areas such as garages or basements . . . since persistent odor could develop.”
AAPC informed the Kaltmans that although the odor from Orthene was unpleasant, it did not represent a health hazard. The Kaltmans therefore made more than a dozen attempts to eradicate the odor by washing the treated surfaces. They also had their home professionally cleaned. However, high concentrations of acephate remained. Because of the noxious fumes, their home was rendered uninhabitable for a year.
After the Kaltmans filed their negligence per se lawsuit in an effort to recover damages for their physical and emotional harms and for expenses they incurred, the trial court granted a motion filed by AAPC and Harrison to have the “Pest Control Service Agreement” between the plaintiffs and AAPC made part of the pleadings. This agreement listed the pests to be controlled and stated that AAPC would “apply chemicals to control above-named pests in accordance with terms and conditions of this Service Agreement. All labor and materials will be furnished to provide the most efficient pest control and maximum safety required by federal, state and city regulations.”
Page 241
AAPC and Harrison filed demurrers to the negligence per se claim (i.e., they asked the court to dismiss the Kaltmans’ complaint for failure to state a valid cause of action against them). The defendants argued that any duties they owed the plaintiffs stemmed from the parties’ contract and that the plaintiffs therefore could not assert a negligence per se claim. The trial court sustained the defendants’ demurrers. The Kaltmans appealed to the Supreme Court of Virginia.
Koontz, Senior Justice
The principles guiding our resolution of the issues presented in this appeal are well-established. The purpose of a demurrer is to determine whether a complaint states a cause of action upon which relief may be granted. [In reviewing the trial court’s decision to sustain the defendants’ demurrers, we] consider the facts stated and all those reasonably and fairly implied in the light most favorable to the nonmoving parties, the Kaltmans.
AAPC and Harrison contend that because their duties arose from the service contract the Kaltmans cannot maintain a cause of action for negligence or negligence per se against them. AAPC and Harrison accept that the company assumed a contractual duty to apply the appropriate pesticide to the Kaltmans’ home. [A] breach of that duty, AAPC and Harrison maintain, can only give rise to a breach of contract claim. We disagree.
“The primary consideration underlying tort law is the protection of persons and property from injury, while the major consideration underlying contract law is the protection of bargained for expectations.” [Citation omitted.] “The law of torts provides redress only for the violation of certain common law and statutory duties involving the safety of persons and property, which are imposed to protect the broad interests of society.” [Citation omitted.] “[L]osses suffered as a result of the breach of a duty assumed only by agreement, rather than a duty imposed by law, remain the sole province of the law of contracts.” [Citation omitted.]
Here, the Kaltmans are seeking redress for injuries to their persons and property as a result of alleged breaches of common law and statutory duties. The Kaltmans contracted with AAPC for the treatment and prevention of pests in their home. Under the terms of that contract, AAPC agreed “to apply chemicals to control” pests in the Kaltmans’ home. Just because the application of pesticides is included in AAPC’s contractual duty to control pests, it does not follow that the Kaltmans have contracted away their common law and statutory rights.
The Kaltmans [argue] that the trial court erred in sustaining the demurrer to their negligence per se [claim]. [The plaintiffs contend that AAPC and Harrison were] negligent per se by violating [a Virginia statute that outlaws use of a pesticide] “in a manner inconsistent with its labeling” [or Virginia regulations]. The Kaltmans allege that this statute was enacted for public safety and that the Kaltmans are members of the class of persons for whose benefit this statute was enacted. This is so, the Kaltmans contend, because the purpose for legislation regulating potentially hazardous products such as pesticides is “the need to provide the particular consumer and the general public with a higher and surer degree of protection than is afforded by exclusive recourse to common-law remedies.” McClanahan v. California Spray-Chemical Corp., 75 S.E.2d 712 (Va. Sup. Ct. 1953).
The doctrine of negligence per se represents the adoption of “the requirements of a legislative enactment as the standard of conduct of a reasonable [person].” [Citation omitted.] The elements of negligence per se are well-established. First, the plaintiff must prove that the defendant violated a statute enacted for public safety. Second, the plaintiff must belong to the class of persons for whose benefit the statute was enacted, and demonstrate that the harm that occurred was of the type against which the statute was designed to protect. Third, the statutory violation must be a proximate cause of plaintiff’s injury.
The first and second of these elements are issues of law to be decided by a trial court, while the third element is generally a factual issue to be decided by the trier of fact. Therefore, in deciding whether the Kaltmans can maintain their negligence per se claim, we will consider whether [the statute on which the Kaltmans seek to rely] was enacted for public safety, whether the Kaltmans are in the class of persons for whose benefit the statute was enacted, and whether their injuries were of the type that the statute was designed to protect.
In McClanahan, we considered whether the former Virginia Insecticide, Fungicide and Rodenticide Law imposed on a manufacturer of a fungicide used to treat apple orchards a duty to warn consumers of the unusual hazards involved with the use of its product. In doing so, we concluded that the “Virginia insecticide statute” was modeled after [a similar federal statute]. We further concluded that at the heart of “both the federal and Virginia statutes lies the need to provide the particular consumer and the general public with a higher and surer degree of protection than is afforded by exclusive recourse to common-law remedies.” [W]e found that the Virginia insecticide statute commands a “liberal interpretation” and “that violation of the statute constitutes negligence as a matter of law precluding the need for establishing the common-law elements of negligence. The statute itself creates the standard of conduct required.” We stated that the fact the Virginia insecticide statute imposes a criminal penalty is evidence of the high standard of care exacted of the manufacturer. We further stated that “[i]t was the legislative intent to protect the public against the use of harmful products, whether the harm be to the user, the person or object on which used, or strangers.”
Page 242
Since the McClanahan decision in 1953, the [Virginia] General Assembly has amended the insecticide statutes a number of times. [The current Pesticide Control Act includes the following section, on which] the Kaltmans base their negligence per se claim: “It is unlawful for any person to use or cause to be used any pesticide in a manner inconsistent with its labeling or [Virginia] regulations . . . .” In deciding whether this statute was enacted for public safety, the statute cannot be read in isolation. It must be construed in conjunction with the other pesticide control statutes. In considering the Pesticide Control Act as a whole, we perceive that its dominant purpose has not changed since our decision in McClanahan. For example, the Act still provides a criminal penalty for violation of its provisions. We therefore are of the opinion that the Act was enacted to protect the public against the use of harmful chemicals. Accordingly, we find that [the quoted section on which the Kaltmans rely] is a public safety statute.
Furthermore, as consumers who allegedly were injured as a result of an improper use of a pesticide, the Kaltmans are members of the class of persons for whose benefit the statute was enacted and who suffered an injury of the type against which the statute protects. Because the Kaltmans’ allegations support the first two elements of negligence per se, we hold that the trial court erred in sustaining the demurrers to the Kaltmans’ negligence per se [claim].
Trial court’s sustaining of demurrers reversed; case remanded for further proceedings.
Causation of Injury Proof that the defendant breached a duty does not guarantee that the plaintiff will win a negligence case. The plaintiff must also prove that the defendant’s breach caused her to experience injury. We shall look briefly at the injury component of this causation of injury requirement before examining the necessary causation link in greater depth.
LO7-7
Identify the types of injuries or harms for which a plaintiff may recover compensatory damages in a negligence case.
Types of Injury and Damages Personal injury—also called “physical” or “bodily” injury—is harm to the plaintiff’s body. It is the type of injury present in many negligence cases. Plaintiffs who experienced personal injury and have proven all elements of a negligence claim are entitled to recover compensatory damages. These damages may include not only amounts for losses such as medical expenses or lost wages but also sums for pain and suffering. Although the nature of the harm may make it difficult to assign a dollar value to pain and suffering, we ask judges and juries to determine the dollar value anyway. The rationale is that the plaintiff’s pain and suffering is a distinct harm resulting from the defendant’s failure to use reasonable care, and that merely totaling up the amounts of the plaintiff’s medical bills and lost wages would not compensate the plaintiff for the full effects of the defendant’s wrongful behavior.
Property damage—harm to the plaintiff’s real estate or a personal property item such as a car—is another recognized type of injury for which compensatory damages are recoverable in negligence litigation. In other negligence cases, many of which arise in business or professional contexts, no personal injury or property damage is involved. Instead, the plaintiff’s injury may take the form of economic loss such as out-of-pocket expenses, lost profits, or similar financial harms that resulted from the defendant’s breach of duty but have no connection to personal injury or property damages. Compensatory damages are available for losses of this nature in appropriate cases.
Whatever the type of injury experienced by the plaintiff, the usual rule is that only compensatory damages are recoverable in a negligence case. As noted in Chapter 6, punitive damages tend to be reserved for cases involving flagrant wrongdoing. Negligence amounts to wrongdoing, but not of the more reprehensible sort typically necessary to trigger an assessment of punitive damages.
What if the plaintiff’s claimed injury is emotional in nature? As you learned in Chapter 6, the law has long been reluctant to afford recovery for purely emotional harms. Until fairly recently, most courts would not allow a plaintiff to recover damages for emotional harms allegedly resulting from a defendant’s negligence unless the plaintiff proved that she experienced a physical injury or at least some impact on or contact with her person. Growing numbers of courts have abandoned the physical injury and impact rules and allow recovery for foreseeable emotional harms that stand alone, but clearly not all have done so. Among courts that still require either physical injury or impact as a general rule when emotional distress damages are sought, many have recognized exceptions to that general rule in particular instances where emotional harm seems especially likely to occur and especially likely to be severe.
Atlantic Coast Airlines v. Cook, which follows, discusses various tests and approaches that courts utilize in deciding negligent infliction of emotional distress cases. (For further discussion of issues that arise with regard to claims for emotional distress damages, see Price v. High Pointe Oil Co., a case included in Chapter 1.)
Atlantic Coast Airlines v. Cook 857 N.E.2d 989 (Ind. Sup. Ct. 2006)
Five months after the September 11, 2001, hijackings of airplanes and less than two months after a passenger on a Paris to Miami flight attempted to detonate explosives hidden in his shoe, Bryan and Jennifer Cook took a flight from Indianapolis to New York City. Delta Airlines handled the ticketing and Atlantic Coast Airlines operated the flight. While passengers waited to board, a man later identified as French national Frederic Girard ran toward the gate and abruptly stopped. Mr. Cook observed that the unaccompanied Girard had two tickets in his possession and that airline security had detained him at the boarding gate before allowing him to board. Mr. Cook further noticed that Girard’s face was red and that his eyes were bloodshot and glassy.
In boarding the 32-passenger plane, Girard ran up the steps and jumped inside. Rather than proceeding to his assigned seat, he attempted to sit in a seat nearest the cockpit. However, the flight attendant instructed him to sit in the back row. After taking a seat there, Girard repeatedly pressed the attendant call button and light switch above his head. Prior to takeoff, Mr. Cook approached the flight attendant and expressed concern that Girard was a possible security threat. The attendant acknowledged as much and explained that he had directed Girard to sit in the rear of the plane so he could keep an eye on him.
During takeoff, Girard ignored instructions to remain seated. He lit a cigarette, disregarding directives from the flight attendant that smoking onboard was prohibited. Despite this admonition, Girard was permitted to retain his lighter. Mr. Cook approached three male passengers and asked for their assistance in the event that Girard’s behavior grew dangerous. Girard moved about the plane, sat in various empty seats, and finally walked up the aisle toward the cockpit. Mr. Cook blocked his path and instructed him to sit. Without any physical contact with Mr. Cook, Girard returned to his seat and lit another cigarette. The flight attendant again told him to extinguish the cigarette, and in response Girard stood and shouted, “Get back! Get back!” Mr. Cook and other passengers approached Girard and ordered him to sit down. Instead, Girard stomped his feet and shouted, mostly in French. The Cooks were able to discern the words “World Trade Center,” “Americans,” and “New York City.” Eventually, a Delta employee convinced Girard to sit after speaking to him in French. The employee spent the remainder of the flight sitting across from Girard in the rear of the plane. The pilot diverted the flight to Cleveland, where police arrested Girard. The flight then continued to New York City.
Recalling the events of September 11th and reports of the shoe-bomber incident, the Cooks described their ordeal as one in which they “have never been so scared in their entire lives” (quoting a brief they filed in the litigation about to be described). They filed a small claims court action in Marion County, Indiana, naming Atlantic Coast as a defendant. The Cooks sought damages for negligent infliction of emotional distress. After the small claims court entered judgment against the Cooks, they appealed to the Marion County Superior Court, which denied Atlantic Coast’s motion for summary judgment. The Indiana Court of Appeals upheld the Superior Court’s denial of the summary judgment motion. Atlantic Coast then appealed to the Supreme Court of Indiana.
Rucker, Justice
Claims for the negligent infliction of mental or emotional distress have long been the subject of scholarly debate. Creating rules, formulating tests, and applying them to address such claims have proven a challenge for most courts. The majority of jurisdictions employ some variation or combination of the following common law limiting tests for evaluating these claims: the “physical injury” rule, under which . . . the plaintiff’s emotional distress must be accompanied by a physical injury or symptom; the “zone of danger” rule, under which recovery is limited to those plaintiffs who themselves were not physically injured but were placed in immediate risk of harm by a defendant’s negligent conduct which injured another; and the “bystander” test, . . . which allows recovery to certain plaintiffs [who] witness the injury or death of a third party (typically a close relative of the bystander) that is caused by the defendant’s negligence. [Citations omitted.] The underlying policy reason binding together these judicially created approaches is that absent certain limitations, allowing recovery for emotional distress will open the floodgates to spurious claims.
Before 1991, Indiana followed the rule that damages for emotional distress were recoverable only when accompanied by and resulting from a physical injury. The underlying rationale for this rule was that “absent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims, and often so unforeseeable that there is no rational basis for awarding damages.” [Citation omitted.] But this court modified the rule in Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991). We held instead:
When . . . a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, . . . such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff.
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We further expounded upon the contours of what is now commonly referred to as the “modified impact rule” in two [1999] cases. In Conder v. Wood, 716 N.E.2d 432, 435 (Ind. 1999), we held [that]
‘direct impact’ is properly understood as the requisite measure of ‘direct involvement’ in the incident giving rise to the emotional trauma. Viewed in this context, we find that it matters little how the physical impact occurs, so long as that impact arises from the plaintiff’s direct involvement in the tortfeasor’s negligent conduct.
[In Conder, we concluded] that a pedestrian suffered a direct impact by pounding upon the panels of a truck that was running over her co-worker. In Ross v. Cheema, 716 N.E.2d 435, 437 (Ind. 1999), we held [that]
[i]n causing the requisite physical injuries, the direct impact is properly understood as being physical in nature. Though removing the physical injury element, Shuamber in no way altered the impact element of the rule. For purposes of the modified rule, the direct impact sustained by the plaintiff must necessarily be a physical one.
[We held in Ross that the plaintiff did not sustain] the direct physical impact necessary to recover damages for negligent infliction of emotional distress [when she proved only that she heard] a loud pounding at her door.
As Shuamber, Conder, and Ross make clear, the modified impact rule maintains the requirement of a direct physical impact. The impact, however, does not need to cause physical injury to the plaintiff. Additionally, the emotional trauma suffered by the plaintiff does not need to result from a physical injury caused by the impact. But how do we assess whether the degree of impact is sufficient to satisfy the requirement of the rule? We have answered this question as follows:
[W]hen the courts have been satisfied that the facts of a particular case are such that the alleged mental anguish was not likely speculative, exaggerated, fictitious, or unforeseeable, then the claimant has been allowed to proceed with an emotional distress claim for damages even though the physical impact was slight, or the evidence of physical impact seemed to have been rather tenuous.
Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind. 2000) (finding that mother’s continued pregnancy and the physical transformation that her body underwent satisfied the direct impact requirement) (citing Alexander v. Scheid, 726 N.E.2d 272, 283–84 (Ind. 2000) (holding that patient suffering from the destruction of healthy lung tissue due to physician’s failure to diagnose cancer was sufficient for negligent infliction of emotional distress); Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 996 (Ind. Ct. App. 1998) (concluding that restaurant patron’s ingestion of a portion of vegetables cooked with a worm was a direct physical impact under the modified impact rule); Dollar Inn, Inc., v. Slone, 695 N.E.2d 185, 189 (Ind. Ct. App. 1998) (finding that hotel guest stabbing herself in the thumb with a hypodermic needle concealed in a roll of toilet paper was sufficient for claim of emotional distress associated with guest’s fear of contracting AIDS).
We acknowledge there have been calls to abandon the impact rule altogether. Among other things there are concerns that Indiana’s impact rule, even as modified, may prohibit some litigants from recovering damages for bona fide emotional injury even though there has been no physical impact. These are respectable positions. It is our view[, however,] that the requirements under Indiana’s rule are modest and that a less restrictive rule would raise the potential for a flood of trivial suits, pose the possibility of fraudulent claims that are difficult for judges and juries to detect, and result in unlimited and unpredictable liability. We therefore reaffirm that Indiana’s impact rule continues to require a plaintiff to demonstrate a direct physical impact resulting from the negligence of another.
This Court [, however,] has carved out an exception to the physical impact requirement. [W]e recognized that there may be circumstances under which a “plaintiff does not sustain a direct impact” but is nonetheless “sufficiently directly involved in the incident giving rise to the emotional trauma that we are able to distinguish legitimate claims from the mere spurious.” Groves v. Taylor, 729 N.E.2d 569, 572 (Ind. 2000). We thus adopted what is now commonly referred to as the bystander rule. [As noted in Groves,]
where the direct impact test is not met, a bystander may nevertheless establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligent or otherwise tortious conduct.
In sum, in order to recover damages for the negligent infliction [of] emotional distress, a plaintiff must satisfy either the modified impact rule or the bystander rule.
Turning to the case before us, the Cooks do not contend that the bystander rule applies to them. Rather, their claim rises or falls on whether they suffered a direct physical impact from the alleged negligence of Atlantic Coast. According to the Cooks, breathing the smoke from Girard’s lit cigarette and experiencing the vibrations from Girard’s stomping feet caused an actual physical impact. [In addition, the Cooks asserted in their brief that] “constructive impact occurred by virtue of the physical effects on the [Cooks’] vital body functions in increased breathing, sweating, pulse, heart rate, adrenaline, and acuteness of the senses.” [N]either this Court nor the Court of Appeals has ever addressed or adopted a theory of “constructive impact” as part of Indiana’s impact rule, and we decline to do so today.
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In any event, citing this Court’s opinion in Alexander, the Court of Appeals characterized what the Cooks contend amounts to constructive impact as “physical changes” that are “good enough” to satisfy the rule. In Alexander, the plaintiff sued her physician for failure to diagnose her lung cancer. Among other things she sought damages for emotional distress. Her healthcare providers argued that the plaintiff failed to satisfy the impact rule. We disagreed[, observing that] “allegedly as a result of the defendants’ negligence, [the plaintiff] suffered the destruction of healthy lung tissue by a cancerous tumor . . . . This is good enough.”
We decline to equate a physical change resulting from the destruction of healthy lung tissue with what can best be described [, in the Cooks’ case,] as the human body’s natural responses to fear and anxiety. Indeed, “increased breathing, sweating, pulse, heart rate, adrenaline, and acuteness of the senses” are more descriptive of stress-like symptoms experienced by many passengers during a normal airplane flight that is undergoing turbulence. They simply are not physical changes as anticipated by Alexander. Nor are they physical transformations [of the sort present in] Bader ([holding that the] plaintiff’s “continued pregnancy and the physical transformation her body underwent as a result satisfy the direct impact requirement of our modified impact rule”).
This leaves for our consideration whether smelling cigarette smoke and feeling floor vibrations satisfy the direct physical impact requirement of the rule. [A]t the very least, this stretches the outer limits of the impact requirement. But even assuming that in some theoretical sense these experiences may be characterized as physical impact, the impact was certainly very “slight” and “the evidence of physical impact seem[s] to have been rather tenuous” (quoting Bader). We thus explore whether the Cooks’ alleged mental anguish is “not likely speculative, exaggerated, fictitious, or unforeseeable” (quoting Bader).
Mr. Cook acknowledges that neither he nor his spouse has sought medical or mental health treatment for emotional distress. In his deposition, Mr. Cook described his emotional state as being “shaken up . . . anxious, just upset” and [stated] that he remained so “until [he and his wife] got to New York and got on the ground.” Mr. Cook also testified that he was “distraught” and “probably didn’t sleep well for at least a week and a half.” He further asserted “whenever I get on a flight, I’m concerned that something could happen.”
In her deposition, Mrs. Cook, who was seven months pregnant at the time of the incident, [stated] that after arriving in New York, she “was just having lower abdominal pains. Could have been brought on by stress.” Further, she reported that she started to feel better “[o]nce we got home and I got back into my normal routine.” Mrs. Cook also testified that she and her husband have traveled by air probably four times since this incident. On those flights, Mrs. Cook [is] “always nervous.” When asked about the harm she incurred from the flight [at issue in the case] Mrs. Cook said, “I feared for my life. I thought I was going to die.” But she stopped having those fears “[w]hen we landed.” According to Mrs. Cook, “[i]t bothered me until we landed. It bothered me that it happened. It bothers me every time I get on a plane.”
Apparently the alleged mental and emotional distress the Cooks experienced manifested itself in fear and anxiety at the time the events were unfolding. But this fear and anxiety were transitory, disappearing once the Cooks completed their flight. Since that time, in their own words, the Cooks have experienced feelings of being “bothered,” “concerned,” and “nervous.” But these feelings about the world around us in general and air travel in particular is the plight of many citizens in this country, living as we do in a post-September 11 environment. As [the Restatement (Second) of Torts § 46 cmt. j (1965)] has explained:
[S]ome degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.
We do not suggest that the Cooks’ fear and anxiety during the flight were trivial. But there was simply nothing before the trial court, and by extension before this Court, suggesting that the Cooks’ fear and anxiety were anything other than temporary. And it is pure speculation to assume that the Cooks’ later feelings of being bothered, concerned, and nervous are causally related to the events aboard the flight. Because the physical impact in this case was slight to nonexistent, allowing an emotional distress claim to proceed based on the Cooks’ lingering mental anguish would essentially abrogate the requirements of Indiana’s modified impact rule. In essence we view the alleged mental anguish here as speculative. Accordingly, the [lower courts] erred in denying Atlantic Coast’s motion for summary judgment on this issue.
Denial of Atlantic Coast’s summary judgment motion reversed.
The Causation Link Even if the defendant has breached a duty and the plaintiff has suffered actual injury, there is no liability for negligence without the necessary causation link between breach and injury. The causation question involves three issues: (1) Was the breach an actual cause of the injury? (2) Was the breach a proximate cause of the injury? and (3) What was the effect of any intervening cause arising after the breach and helping to cause the injury? Both actual and proximate causes are necessary for a negligence recovery. Special rules dealing with intervening causes sometimes apply, depending on the facts of the case.
LO7-8
Explain the difference between actual cause and proximate cause.
Actual Cause Suppose that Dullard drove his car at an excessive speed on a crowded street and was therefore unable to stop the car in time to avoid striking and injuring Pence, who had lawfully entered the crosswalk. Dullard’s conduct, being inconsistent with the behavior of a reasonable driver, was a breach of duty that served as the actual cause of Pence’s injuries. To determine the existence of actual cause, courts often employ a “but-for” test. This test provides that the defendant’s conduct is the actual cause of the plaintiff’s injury when the plaintiff would not have been hurt but for (i.e., if not for) the defendant’s breach of duty. In the example employed above, Pence clearly would not have been injured if not for Dullard’s duty-breaching conduct.
In some cases, however, a person’s negligent conduct may combine with another person’s negligent conduct to cause a plaintiff’s injury. Suppose that fires negligently started by Dustin and Dibble combine to burn down Potter’s house. If each fire would have destroyed Potter’s house on its own, the but-for test could absolve both Dustin and Dibble. In such cases, courts apply a different test by asking whether each defendant’s conduct was a substantial factor in bringing about the plaintiff’s injury. Under this test, both Dustin and Dibble are likely to be liable for Potter’s loss.
LO7-8
Explain the difference between actual cause and proximate cause.
Proximate Cause The plaintiff who proves actual cause has not yet established the causation link necessary to enable her to win the case. She must also establish the existence of proximate cause—a task that sometimes, though clearly not always, is more difficult than proving actual cause.
Questions of proximate cause assume the existence of actual cause. Proximate cause concerns arise because it may sometimes seem unfair to hold a defendant liable for all the injuries actually caused by his breach—no matter how remote, bizarre, or unforeseeable they are. Thus, courts typically say that a negligent defendant is liable only for the proximate results of his breach. Proximate cause, then, concerns the required degree of proximity or closeness between the defendant’s breach and the injury it actually caused.
Courts have not reached complete agreement on the appropriate test for resolving the proximate cause question. In reality, the question is one of social policy. When deciding which test to adopt, courts must recognize that negligent defendants may be exposed to catastrophic liability by a lenient test for proximate cause, but that a restrictive test prevents some innocent victims from recovering damages for their losses. Courts have responded in various ways to this difficult question.
A significant number of courts have adopted a test under which a defendant who has breached a duty of care is liable only for the “natural and probable consequences” of his actions. In many negligence cases, the injuries actually caused by the defendant’s breach would easily qualify as natural and probable consequences because they are the sorts of harms that are both likely and logical effects of such a breach. The Dullard–Pence scenario discussed earlier would be an example. It is to be expected that a pedestrian struck by a car would sustain personal injury.
In other negligence cases, however, either the fact that the plaintiff was injured or the nature of his harms may seem unusual or in some sense remote from the defendant’s breach, despite the existence of an actual causation link. The presence or absence of proximate cause becomes a more seriously contested issue in a case of that nature. A great deal will depend upon how narrowly or broadly the court defines the scope of what is natural and probable.
Other courts have limited a breaching defendant’s liability for unforeseeable harms by stating that he is liable only to plaintiffs who were within the “scope of the foreseeable risk.” This proximate cause test bears similarity to a key test for determining whether the duty element of a negligence claim exists. As earlier discussion noted, courts typically hold that a defendant owes no duty to those who are not foreseeable “victims” of his actions. The Restatement (Second) of Torts takes yet another approach to the proximate cause question. It suggests that a defendant’s breach of duty is not the legal (i.e., proximate) cause of a plaintiff’s injury if, looking back after the harm, it appears “highly extraordinary” to the court that the breach would have brought about the injury.
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Further discussion of proximate cause issues can be found in the Stahlecker case, which appears in this chapter’s later discussion of intervening causes. In Black v. William Insulation Co., which follows, the court rests its decision on the duty element of a negligence claim but engages in considerable discussion of the proximate cause concept.
Black v. William Insulation Co. 141 P.3d 123 (Wyo. Sup. Ct. 2006)
William Insulation Co. (WIC) was a subcontractor on an expansion project at the Exxon/LaBarge Shute Creek Plant. The plant was located in a remote Wyoming area approximately 26 and 40 miles, respectively, from the nearest population centers, the towns of Green River and Kemmerer. Given the remoteness of the work site, WIC provided $30 per day in subsistence pay to each of its employees to defer part of the cost of a motel room or apartment in Green River or Kemmerer. WIC did not require its employees to spend the money on lodging. The employees were free to spend it—or not spend it—as they saw fit.
David Ibarra-Viernes, a WIC employee, was assigned to work on the above-described expansion project. Ibarra-Viernes received the $30 per day subsistence pay from WIC but elected to make the commute to the plant from his home in Evanston, Wyoming, which was 90 miles away. Ibarra-Viernes carpooled with a group of co-workers, who took turns driving. Ibarra-Viernes’s work schedule was Monday through Friday, 7:00 AM to 5:30 PM, with a half-hour lunch and no, or minimal, breaks. In addition to his employment with WIC, Ibarra-Viernes worked a second job at night, washing dishes at a restaurant.
Ibarra-Viernes completed his regular shift at the plant on a Tuesday and returned to Evanston at 8:30 PM. He then worked his second job before going to bed around 11:00 PM. Ibarra-Viernes rose at 4:00 AM on Wednesday to get his vehicle and collect his co-workers for the daily commute to the plant, where he worked his normal shift. The car pool, with Ibarra-Viernes driving, left the plant around 6:00 PM. Shortly thereafter, Ibarra-Viernes fell asleep at the wheel. His vehicle crossed the centerline of the highway and collided head-on with a vehicle in which Richard Black was a passenger. Richard Black died in the accident. His widow, Peggy Ann Cook Black, acting in her own right and as personal representative of her late husband’s estate, filed a negligence-based wrongful death action against WIC in a Wyoming state court.
In her lawsuit, Black claimed that WIC owed a duty of care to other travelers on the highway to prevent injury caused by employees who had become exhausted after being required to commute long distances and work long hours. She contended in her complaint that WIC breached its duty by “failing to take precautionary measures to prevent employees from becoming so exhausted that they pose a threat of harm to the traveling public and failing to provide alternative transportation to its exhausted employees or, in the alternative, failing to provide living quarters to its employees within a reasonable distance from the plant site.” The district court granted WIC’s motion, for summary judgment, concluding that WIC did not owe a duty to the decedent. Black appealed to the Supreme Court of Wyoming.
Hill, Justice
Black sets out [this issue] on appeal: Did the trial court err in failing to recognize a duty of care from an employer to innocent third parties who are injured, or in this case, killed, by its employees who are exhausted due to the working conditions imposed by the employer and thus fall asleep at the wheel? WIC responds [by arguing that] Wyoming law does not, and should not, impose a legal duty of reasonable care on Wyoming employers to protect the motoring public from the negligence of their off-duty employees when those off-duty employees drive to and from their Wyoming worksites in their personal vehicles outside the scope of their employment.
“Whether a legal duty exists is a question of a law, and absent a duty, there is no liability.” [Citation omitted.] A duty may arise by contract, statute, common law, “or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff.” [Citation omitted.]
In deciding whether to adopt a particular tort duty, a court’s focus must be much broader than just the case at hand. The judge’s function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, “the imposition and scope of a legal duty is dependent not only on the factor of foreseeability but involves other considerations, including the magnitude of the risk involved in defendant’s conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant.” [Citations omitted.] In Gates v. Richarson, 719 P.2d 193 (1986), we further detailed the factors to be considered:
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(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.
Before we can proceed to our analysis, we must identify the nature of the duty that Black seeks to impose on WIC. Black insists that she is not seeking . . . to establish a broad duty of care for an employer to control an off-duty employee’s conduct. Instead, she argues that an employer has an obligation to ensure that the conditions of employment do not cause an employee to become fatigued and, to the extent that they do, the employer has a duty to take reasonable actions to protect the traveling public from the foreseeable consequences of those employees traveling from their worksite. Essentially, the question of duty that we must determine in this case is whether WIC’s actions and/or inactions prior to the accident created a foreseeable risk of harm that the employer had a duty to guard against. In other words: whether or not Ibarra-Viernes’s fatigue arose out of, and in the course of, his employment.
We turn to the first Gates factor: The foreseeability of harm to the plaintiff. We recently stated that this factor is essentially a consideration of proximate cause. Proximate cause [exists when] “the accident or injury [is] the natural and probable consequence of the act of negligence.” [Citation omitted.] The ultimate test of proximate cause is foreseeability of injury. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff’s injuries.
The question then is whether or not WIC’s conduct was a substantial factor in bringing about the death of the decedent. Or more precisely, a showing of causation necessitates a showing that Ibarra-Viernes’s work was a substantial contributing factor to his fatigue. This means that for an “employer to be liable for the actions of a fatigued employee on a theory of negligence, the fatigue must arise out of and in the course of employment . . . [because] . . . [t]o hold otherwise would charge an employer with knowledge of circumstances beyond his control.” [Citation of quoted article omitted.]
Black contends that the accident was a foreseeable consequence of WIC’s conduct. Specifically, she claims that . . . WIC required its employees to work long hours and make long commutes. She argues that workers who were commuting and working twelve to fourteen hours a day would not have sufficient time in the day to take care of life activities and still get sufficient sleep. Given these conditions, Black contends that without employer supplied alternatives such as bus transport, it was foreseeable that sleep-deprived workers would likely fall asleep and cause injury to other travelers on the roads.
The most obvious factor within the employer’s control that could cause fatigue in an employee is the number of hours the employee is required to work. On the day of the accident and those preceding it, Ibarra-Viernes worked his normal shift of ten hours. A ten-hour shift within a twenty-four-hour period is not, on its face, an objectively unreasonable period of work when compared with those situations where an employer was held liable for the damages caused by a fatigued employee driving home from work. Compare Robertson v. LeMaster, 301 S.E.2d 563, 568–69 (W.Va. 1983) (employee required to work 32 consecutive hours) and Faverty v. McDonald’s Restaurants of Oregon, Inc., 892 P.2d 703, 705 (Ore. App. 1995) (18-year-old employee worked 12½ hours in a 17-hour period). Crucially, in both of those cases, the employers had actual knowledge of their employee’s fatigued state. There is no evidence that WIC had notice that Ibarra-Viernes was fatigued on the day of the accident.
Black seeks to expand Ibarra-Viernes’s hours of work to include the time of his commute, claiming that WIC “required” him to make the lengthy drive to and from the plant [by not providing alternative transportation such as a bus]. First, Black cites no authority for the proposition that WIC was required to provide its employees with alternatives, such as busing, to commuting. Furthermore, WIC did, in fact, provide an alternative to long-distance commuting for its employees: WIC provided its employees, including Ibarra-Viernes, with a daily $30 subsistence payment to partially offset the cost of taking lodging closer to the worksite. Ibarra-Viernes, however, elected to pocket that money and commute every day from his home in Evanston. That was a voluntary choice made by Ibarra-Viernes.
In making her argument, Black fails to address a significant factor: Ibarra-Viernes’s decision to work a second job. After returning to Evanston upon completion of his work day for WIC, Ibarra-Viernes would go to a second job at a restaurant. On the night before the accident, Ibarra-Viernes stated that he returned home about 8:30 PM and then went to work [at] his second job. Ibarra-Viernes said he got to bed around 11:00 PM that night. Certainly, the second job had an effect on Ibarra-Viernes’s ability to get rest, if not actual sleep. Ibarra-Viernes admitted that he normally got only about five to six hours of sleep a night. Nevertheless, Black neglects to discuss the consequences of the second job in her brief. Her failure to do so seriously undermines her argument.
Ibarra-Viernes had 13½ hours between shifts during the work week. The burden was on him to manage his own time to ensure that he was capable of performing his job. Ibarra-Viernes elected to expend a significant portion of his time making a lengthy commute and working a second job. These were voluntary decisions made by Ibarra-Viernes for which he is responsible. Under these circumstances, it cannot be said that his employment was the substantial factor in contributing to Ibarra-Viernes’s fatigue.
We conclude that decedent’s injuries were not the “natural and probable consequence of ” any acts of negligence by WIC in the course of Ibarra-Viernes’s employment; rather, the decisions and conduct of Ibarra-Viernes were the substantial factor that brought about the injuries. Since the harm to Black’s decedent was not a foreseeable consequence of WIC’s actions (or inactions), we decline to impose a duty under the circumstances. Given this conclusion, the remaining Gates factors are not persuasive, and we decline to discuss them.
Grant of summary judgment to WIC affirmed.
Later Acts, Forces, or Events In some cases, an act, force, or event occurring after a defendant’s breach of duty may play a significant role in bringing about or worsening the plaintiff’s injury. For example, suppose that after Davis negligently starts a fire, a high wind comes up and spreads the fire to Parker’s home, or that after Davis negligently runs Parker down with his car, a thief steals Parker’s wallet while he lies unconscious. If the later act, force, or event was foreseeable, it will not relieve the defendant of liability. So, if high winds are an occurrence that may reasonably be expected from time to time in the locality, Davis is liable for the damage to Parker’s home even though his fire might not have spread that far under the wind conditions that existed when he started it. In the second example, Davis is liable not only for Parker’s physical injuries but also for the theft of Parker’s wallet if the theft was foreseeable, given the time and location of the accident. (The thief, of course, would also be liable for the theft.)
LO7-9
Explain what an intervening cause is and what effect it produces.
Intervening Causes On the other hand, if the later act, force, or event that contributes to the plaintiff’s injury was unforeseeable, most courts hold that it is an intervening cause, which absolves the defendant of liability for harms that resulted directly from the intervening cause. For example, Dalton negligently starts a fire that causes injury to several persons. The driver of an ambulance summoned to the scene has been drinking on duty and, as a result, loses control of his ambulance and runs up onto a sidewalk, injuring several pedestrians. Given the nature of the ambulance driver’s position, his drinking while on duty is likely to make the ambulance crash an unforeseeable event and thus an intervening cause. Most courts, therefore, would not hold Dalton responsible for the pedestrians’ injuries. The ambulance driver, of course, would be liable to those he injured.
An important exception to the liability-absolving effect of an intervening cause deals with unforeseeable later events that produce a foreseeable harm identical to the harm risked by the defendant’s breach of duty. Why should the defendant escape liability on the basis that an easily foreseeable consequence of its conduct came about through unforeseeable means? For example, if the owners of a concert hall negligently fail to install the number of emergency exits required by law, the owners will not escape liability to those burned and trampled during a fire just because the fire was caused by an insane concertgoer who set himself ablaze.
As suggested by some of the examples used above, when a defendant’s breach of duty is followed by a third party’s criminal or other wrongful act, the later act may be either foreseeable or unforeseeable, depending on the facts and circumstances. This state of affairs reflects the prevailing modern approach, which differs sharply from the traditional view that third parties’ criminal acts were unforeseeable as a matter of law and thus were always intervening causes serving to limit or eliminate the original defendant’s negligence liability. Today, courts do not hesitate to classify a third party’s criminal act as foreseeable if the time and place of its commission and other relevant facts point to such a conclusion.
Assume, for instance, that XYZ, Inc., owns an apartment complex at which break-ins and prior instances of criminal activity had occurred. XYZ nevertheless fails to adopt the security-related measures that a reasonable apartment complex owner would adopt. As a result, a criminal intruder easily enters the complex. He then physically attacks a tenant. Because the intruder’s act is likely to be seen as foreseeable— and thus not an intervening cause—XYZ faces negligence liability to the tenant for the injuries that the intruder directly inflicted on the tenant. (The intruder, of course, would face both criminal and civil liability for battery, but if his financial assets are limited, the injured tenant may find collecting a damages award from him either difficult or impossible.) Note that for purposes of the tenant’s negligence claim, XYZ’s breach of duty was a substantial factor in bringing about the plaintiff’s injuries because the lack of reasonable security measures allowed the intruder to gain easy access to the premises. XYZ’s breach thus would be considered the actual cause of the tenant’s injuries under the previously discussed substantial factor test. It would also be considered the proximate cause under the various tests described earlier.
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The Stahlecker case, which follows, illustrates the operation of intervening cause principles.
Stahlecker v. Ford Motor Co. 667 N.W.2d 244 (Neb. Sup. Ct. 2003)
During the early morning hours, Amy Stahlecker was driving a 1997 Ford Explorer equipped with Firestone Wilderness AT radial tires in a remote area of Nebraska. One of the tires failed, rendering the vehicle inoperable. Richard Cook encountered Amy while she was stranded as a result of the tire failure. Cook abducted Amy, sexually assaulted her, and then murdered her.
Susan and Dale Stahlecker, acting on behalf of themselves and as personal representatives of their daughter’s estate, brought a wrongful death action in a Nebraska court against Cook, the Ford Motor Co. (manufacturer of the Explorer), and Bridgestone/Firestone Inc. (manufacturer of the tire that failed). The Stahleckers sought to make out negligence claims against Ford and Firestone. The plaintiffs alleged that Ford and Firestone knew of prior problems with the model of tire that was on the Explorer driven by Amy; knew those problems posed a greater-than-normal danger of tire failure; continued using a problematic model of Firestone tire on Explorers despite knowledge that tire failure would create a special risk of rollover and vehicle inoperability; failed to warn consumers of these dangers; and continued to advertise their tires and vehicles as suitable for uses of the sort Amy made immediately prior to the tire failure, even though they knew that drivers could become stranded in the event of tire failure. There was no allegation that the tire failure directly caused Amy to sustain physical harm prior to the obvious harm inflicted by Cook.
A state district court sustained demurrers filed by Ford and Firestone and dismissed the case as to those parties. The court concluded that the Stahleckers had not stated a valid cause of action against Ford and Firestone because Cook’s criminal acts constituted an intervening cause that would relieve Ford and Firestone of any liability they might otherwise have had. The Stahleckers successfully petitioned to bypass the Nebraska Court of Appeals and pursue their appeal in the Supreme Court of Nebraska.
Stephan, Judge
In order to withstand a demurrer, a plaintiff must plead . . . “a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.” [Citation omitted.] In determining whether a cause of action has been stated, a petition is to be construed liberally.
In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty. The concept of “foreseeability” is a component of both duty and proximate cause, although its meaning is somewhat different in each context. We have noted this distinction in recent cases:
Foreseeability as a determinant of a [defendant’s] duty of care … is to be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury. Foreseeability as it impacts duty determinations refers to the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care. . . . Foreseeability that affects proximate cause, on the other hand, relates to the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff reasonably flowed from defendant’s breach of duty. . . . Foreseeability in the proximate cause context relates to remoteness rather than the existence of a duty.
[Citations omitted.]
[B]y alleging that Ford and Firestone failed to exercise reasonable care in designing and manufacturing their tires, and failed to warn users of potential tire defects, the Stahleckers have alleged the existence of a legal duty and a breach thereof by both Ford and Firestone. The remaining issue is whether the breach of this duty was the proximate cause of Amy’s harm.
The proximate cause of an injury is “that cause which, in a natural and continuous sequence, without any efficient, intervening cause, produces the injury, and without which the injury would not have occurred.” [Citation omitted.] Stated another way, a plaintiff must meet [these] basic requirements in establishing [causation]: (1) [the actual cause requirement] that without the negligent action, the injury would not have occurred, commonly known as the “but-for” rule; [and] (2) [the proximate cause requirement] that the injury was a natural and probable result of the negligence. [In addition, there cannot have been] an efficient intervening cause.
As to the first requirement, a defendant’s conduct is the cause of the event if “the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event if the event would have occurred without it.” [Citation omitted.] The petition alleges that Cook “found Amy alone and stranded as a direct result of the failure of the Firestone Wilderness AT Radial Tire and proceeded to abduct, terrorize, rape and murder Amy.” Firestone concedes that under the factual allegations of the Stahleckers’ petition—that “but for” the failure of its tire—Amy would not have been at the place where she was assaulted and murdered.
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The [tests governing] proximate cause [and intervening cause] are somewhat interrelated. Was the criminal assault and murder the “natural and probable” result of the failure to warn of potential tire failure, or did the criminal acts constitute an effective intervening cause that would preclude any causal link between the failure to warn and the injuries and wrongful death for which damages are claimed in this action? An efficient intervening cause is a new, independent force intervening between the defendant’s negligent act and the plaintiff’s injury. This force may be the conduct of a third person who had full control of the situation, whose conduct the defendant could not anticipate or contemplate, and whose conduct resulted directly in the plaintiff’s injury. An efficient intervening cause must break the causal connection between the original wrong and the injury.
In Shelton v. Board of Regents, 320 N.W.2d 748 (Neb. 1982), we considered whether criminal conduct constituted an intervening cause. Shelton involved wrongful death claims brought on behalf of persons who were poisoned by a former employee of the Eugene C. Eppley Institute for Research in Cancer and Allied Diseases (the Institute). In their actions against the Institute . . . , the plaintiffs alleged that [even though] the former employee had a prior criminal conviction involving an attempted homicide, the Institute hired him as a research technologist and gave him access to the poisonous substance which he subsequently used to commit the murders. The plaintiffs alleged that the Institute was negligent in hiring the employee, in allowing him to have access to the poisonous substance, and in failing to monitor its inventory of the substance. The plaintiffs further alleged that the Institute’s negligence was the proximate cause of the injuries and deaths of the victims. The district court sustained a demurrer filed by the Institute and dismissed the actions. This court affirmed, holding . . . that the criminal acts of stealing the drug and administering it to the victims “were of such nature as to constitute an efficient intervening cause which destroys any claim that the alleged negligence of the [Institute] was the proximate cause of the appellants’ injuries and damage.” In reaching this conclusion, we relied upon Restatement (Second) of Torts § 448 (1965), which states the following rule:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
We held [in Shelton] that the employee’s criminal acts were the cause of the injuries for which damages were claimed and that “nothing which the [plaintiffs] claim the . . . Institute failed to do was in any manner related to those acts, nor could they have been reasonably contemplated by the . . . Institute.”
We have, however, determined in certain premises liability cases and in cases involving negligent custodial entrustment that the criminal act of a third person does not constitute an efficient intervening cause. For example, in [one such case], a patron of a bar was seriously injured by another patron in the parking lot after the two were instructed by the bartender to take their argument “outside.” The injured patron sued the owner of the bar, alleging that the owner negligently failed to contact law enforcement, maintain proper security on the premises, and properly train his personnel. [R]evers[ing] a judgment on a jury verdict in favor of the owner, . . . [w]e reasoned that
because the harm resulting from a fight is precisely the harm against which [the owner] is alleged to have had a duty to protect [the patron], the “intervention” of [the other patron] cannot be said to be an independent act that would break the causal connection between [the owner’s] negligence and [the patron’s] injuries.
[Citation omitted.]
We employed similar reasoning in [two other cases that] involved negligent placement of juvenile wards of the state in foster homes without disclosure of their known histories of violent acts. In each of those cases, we held that criminal acts of foster children perpetrated upon members of the foster parents’ households could not be asserted as intervening causes to defeat liability for the negligent placement. Similarly, we recently held that a psychiatric patient’s criminal assault upon a nurse was not an intervening cause as to the negligence of a state agency which breached its duty to disclose the violent propensities of the patient at the time of his admission to the hospital where the assault occurred. These decisions were based upon the principle … that “once it is shown that a defendant had a duty to anticipate [a] criminal act and guard against it, the criminal act cannot supersede the defendant’s liability.” [Citation omitted.]
This principle requires that we determine whether the duty owed to Amy by Ford and Firestone, as manufacturers and sellers of the allegedly defective tires, included a duty to anticipate and guard against criminal acts perpetrated against the users of such tires. [As illustrated by the previously discussed cases dealing with juvenile wards and psychiatric patients,] we have recognized a duty to anticipate and protect another against criminal acts where the party charged with the duty has some right of control over the perpetrator of such acts or the physical premises upon which the crime occurs. [We have] recognized a duty on the part of the owner of business premises to protect invitees from criminal assault where there had been documented criminal activity in the immediate vicinity of the premises. [In addition, we have] held that a university had a duty to protect a student from physical hazing conducted in a fraternity house where similar incidents were known to have occurred previously[, and] that a university “owes a landowner-invitee duty to its students to take reasonable steps to protect against foreseeable acts of violence on its campus and the harm that naturally flows therefrom.” [Citation omitted.] However, we have adopted Restatement (Second) of Torts § 315 (1965), which provides:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless . . . a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or . . . a special relation exists between the actor and the other which gives to the other a right to protection.
We have found no authority recognizing a duty on the part of the manufacturer of a product to protect a consumer from criminal activity at the scene of a product failure where no physical harm is caused by the product itself.
The Stahleckers argue that a duty to anticipate criminal acts associated with product failure arises from their allegations that Ford and Firestone knew or should have known of “the potential for similar dangerous situations arising as a result of a breakdown of a Ford Explorer and/or its tires.” They also allege that Ford and Firestone had or should have had “knowledge, to include statistical information, regarding the likelihood of criminal conduct and/ or sexual assault against auto and tire industry consumers as a result of unexpected auto and/or tire failures in general.” Assuming the truth of these allegations, the most that can be inferred is that Ford and Firestone had general knowledge that criminal assaults can occur at the scene of a vehicular product failure. However, it is generally known that violent crime can and does occur in a variety of settings, including the relative safety of a victim’s home. The facts alleged do not present the type of knowledge concerning a specific individual’s criminal propensity, or right of control over premises known to have been the scene of prior criminal activity, upon which we have recognized a tort duty to protect another from criminal acts.
The Stahleckers have not alleged, and could not allege, any special relationship between Ford and Firestone and the criminal actor (Cook) or the victim of his crime (Amy) that would extend their duty, as manufacturers and sellers of products, to protect a consumer from harm caused by a criminal act perpetrated at the scene of a product failure. In the absence of such a duty, [we must] conclude as a matter of law that the criminal assault constituted an efficient intervening cause which precludes a determination that negligence on the part of Ford and Firestone was the proximate cause of the harm [to Amy].
[Therefore,] the district court did not err in sustaining the demurrers of Ford and Firestone . . . and in dismissing the action as to them.
District court’s decision affirmed.
Special Rules Whatever test for proximate cause a court adopts, most courts agree on certain basic causation rules. In case of a conflict, these rules supersede the proximate cause and intervening cause rules stated earlier. One such rule is that persons who are negligent “take their victims as they find them.” This means that a negligent defendant is liable for the full extent of her victim’s injuries if those injuries are aggravated by some preexisting physical susceptibility of the victim—even though this susceptibility could not have been foreseen. Similarly, negligent defendants normally are liable for diseases contracted by their victims while in a weakened state caused by their injuries. Negligent defendants typically are jointly liable—along with medical personnel—for negligent medical care that their victims receive for their injuries.
Res Ipsa Loquitur In some cases, negligence may be difficult to prove because the defendant has superior knowledge of the circumstances surrounding the plaintiff’s injury. It may not be in the defendant’s best interests to disclose those circumstances if they point to liability on his part. The classic example is an 1863 case, Byrne v. Boadle. The plaintiff was a pedestrian who had been hit on the head by a barrel of flour that fell from a warehouse owned by the defendant. The plaintiff had no way of knowing what caused the barrel to fall; he merely knew he had been injured. The only people likely to have known the relevant facts were the owners of the warehouse and their employees, but they most likely were the ones responsible for the accident. After observing that “[a] barrel could not roll out of a warehouse without some negligence,” the court required the defendant owner to show that he was not at fault.
Byrne v. Boadle eventually led to the doctrine of res ipsa loquitur (“the thing speaks for itself”). Res ipsa applies when (1) the defendant has exclusive control of the instrumentality of harm (and therefore probable knowledge of, and responsibility for, the cause of the harm); (2) the harm that occurred would not ordinarily occur in the absence of negligence; and (3) the plaintiff was in no way responsible for his own injury. Most courts hold that when these three elements are satisfied, a presumption of breach of duty and causation arises. The defendant then runs a significant risk of losing the case if he does not produce evidence to rebut this presumption.
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CYBERLAW IN ACTION
Gentry v. eBay, Inc., 99 Cal.App. 4th 816 (2002), was a case brought by buyers of sports memorabilia that bore autographs later determined not to be genuine. The plaintiffs contended that eBay, an online marketplace on which the items were sold, should bear legal responsibility on various legal grounds, including negligence. According to the plaintiffs, eBay had been negligent: (1) by maintaining an online forum that allowed any user, regardless of his or her purchase history, to give positive or negative feedback regarding dealers; and (2) by endorsing certain dealers on the basis of this feedback and the dealers’ sales volume. The plaintiffs contended that these actions by eBay created a false sense of confidence in the collectibles’ authenticity because most, if not all, of the positive feedback about a dealer would be generated either by that dealer or by another cooperating dealer.
A California appellate court held in Gentry that §230 of the federal Communications Decency Act provided eBay a meritorious defense against the plaintiffs’ negligence claim. Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court reasoned that eBay was a “provider . . . of an interactive computer service” and that the plaintiffs’ negligence claim amounted, in substance, to an attempt to have eBay held liable for the effects of statements made by “another information content provider” or providers (i.e., those who, in the online forum, posted arguably misleading “feedback”). The court therefore regarded the plaintiffs’ negligence claim as an effort to have eBay treated as the “publisher” of information provided by another party. Section 230, the court held, prohibited such treatment of eBay.
Negligence Defenses The common law traditionally recognized two defenses to negligence: contributory negligence and assumption of risk. In many states, however, these traditional defenses have been superseded by new defenses called comparative negligence and comparative fault.
LO7-10
Explain the difference between traditional contributory negligence and the comparative negligence doctrine now followed by almost all states.
Contributory Negligence Contributory negligence is the plaintiff’s failure to exercise reasonable care for her own safety. In the very limited number of states where it still applies, contributory negligence is a complete defense for the defendant if it was a substantial factor in producing the plaintiff’s injury. So, if Preston steps into the path of Doyle’s speeding car without first checking to see whether any cars are coming, Preston would be denied any recovery against Doyle, in view of the clear causal relationship between Preston’s injury and his failure to exercise reasonable care for his own safety.
LO7-11
Explain the difference in operation between pure comparative negligence and mixed comparative negligence.
Comparative Negligence Traditionally, even a plaintiff’s fairly minor failure to exercise reasonable care for his own safety—only a slight departure from the standard of reasonable self-protectiveness—gave the defendant a complete contributory negligence defense. This rule, which probably stemmed from the 19th-century desire to protect railroads and infant manufacturing interests from negligence liability, came under increasing attack in the 20th century. The main reasons were the traditional rule’s harsh impact on many plaintiffs. The rule frequently prevented slightly negligent plaintiffs from recovering any compensation for their losses, even though the defendants may have been much more at fault.
In response to such complaints, almost all states have adopted comparative negligence systems either by statute or by judicial decision. The details of these systems vary, but the principle underlying them is essentially the same: courts seek to determine the relative negligence of the parties and award damages in proportion to the degrees of negligence determined. The formula is:
Plaintiff’s recovery = Defendant’s percentage share of the negligence causing the injury × Plaintiff’s proven damages
For example, assume that Dunne negligently injures Porter and that Porter suffers $100,000 in damages. A jury determines that Dunne was 80 percent at fault and Porter 20 percent at fault. Under comparative negligence, Porter would recover $80,000 from Dunne. What if Dunne’s share of the negligence is determined to be 40 percent and Porter’s 60 percent? Here, the results vary depending on whether the state in question has adopted a pure or a mixed comparative negligence system. Under a pure system, courts apply the preceding formula regardless of the plaintiff’s and the defendant’s percentage shares of the negligence. Porter therefore would recover $40,000 in a pure comparative negligence state. Under a mixed system, the formula operates only when the defendant’s share of the negligence is greater than (or, in some states, greater than or equal to) 50 percent. If the plaintiff’s share of the negligence exceeds 50 percent, mixed systems provide that the defendant has a complete defense against liability. In such states, therefore, Porter would lose the case.
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Currie v. Chevron USA, Inc., which appears earlier in the chapter, illustrates the operation of comparative negligence principles. In that wrongful death case arising out of a Chevron clerk’s negligence in authorizing a gas pump, the court reduced the amount of damages awarded to the plaintiff because the plaintiff’s decedent had been partially at fault (presumably through participating in a fight that, when it escalated, resulted in her death). The plaintiff still won a substantial damages award, but the amount was reduced in accordance with the percentage of fault attributed to her decedent.
Dick’s Sporting Goods, Inc. v. Webb, another case that appears earlier in the chapter, contains discussion of possible comparative negligence issues that could arise when the remanded premises liability case would go to trial. As a further illustration, think about the comparative negligence issues in the case that served as the basis for the problem with which this chapter opened. In that case, the plaintiff’s decedent was partially at fault for falling asleep while driving his vehicle. Therefore, even if the defendants were negligent, comparative negligence principles would dictate a reduction in the amount of damages to be recovered by the plaintiff.
Assumption of Risk Assumption of risk is the plaintiff’s voluntary consent to a known danger. Voluntariness means that the plaintiff accepted the risk of her own free will; knowledge means that the plaintiff was aware of the nature and extent of the risk. Often, the plaintiff’s knowledge and voluntariness are inferred from the facts. This type of assumption of risk is sometimes called implied assumption of risk. For example, Pilson voluntarily goes for a ride in Dudley’s car, even though Dudley has told Pilson that her car’s brakes frequently fail. Pilson probably has assumed the risk of injury from the car’s defective brakes.
A plaintiff can also expressly assume the risk of injury by entering into a contract that purports to relieve the defendant of a duty of care he would otherwise owe to the plaintiff. Such contract provisions are called exculpatory clauses. Chapter 15 discusses exculpatory clauses and the limitations that courts have imposed on their enforceability. The most important such limitations are that the plaintiff have knowledge of the exculpatory clause (which often boils down to a question of its conspicuousness), and that the plaintiff must accept it voluntarily (which does not happen when the defendant has greatly superior bargaining power).
What happens to assumption of risk in comparative negligence states? Some of these states maintain assumption of risk as a separate and complete defense. Most other states now incorporate implied assumption of risk within the state’s comparative negligence scheme. In such states, comparative negligence basically becomes comparative fault. Although the terms comparative negligence and comparative fault often are used interchangeably, technically the former involves only negligence and the latter involves all kinds of fault. In a comparative fault state, therefore, the fact-finder determines the plaintiff’s and the defendant’s relative shares of the fault—including assumption of risk—that caused the plaintiff’s injury.
LO7-12
Identify circumstances in which strict liability principles, rather than those of negligence, control a case.
Strict Liability
Strict liability is liability without fault or, perhaps more precisely, irrespective of fault. This means that in strict liability cases, the defendant is liable even though he did not intend to cause the harm and did not bring it about through recklessness or negligence.
The imposition of strict liability is a social policy decision that the risk associated with an activity should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk. Such liability is premised on the defendant’s voluntary decision to engage in a particularly risky activity. When the defendant is a corporation that has engaged in such an activity, the assumption is that the firm can pass the costs of liability on to consumers in the form of higher prices for goods or services. Through strict liability, therefore, the economic costs created by certain harms are “socialized” by being transferred from the victims to defendants to society at large.
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