Elements of Cause of Action of Negligence

ELEMENTS OF CAUSE OF ACTION OF NEGLIGENCE:

"Negligence" is the word used to describe the conduct of the defendant. But a cause of action for negligence requires more than negligent conduct. The traditional formula for the elements necessary to prove negligence include the following:

1. A duty to use reasonable care. This is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure to conform to the required standard. This is commonly called breach of the duty. These two elements go to make up what the courts usually have called negligence; but the term frequently is applied to the second alone. Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff to use reasonable care.

3. A reasonably close causal connection between the conduct and the resulting injury. This is commonly called causation. Causation involves a combination of two elements-causation in fact and legal or "proximate" causation.

4. Actual loss or damage resulting to the interests of another.

The action for negligence developed chiefly out of the old form of action on the case; and it retained the rule of that action that pleading and proof of damage was an essential part of the plaintiffs case. It is clear that nominal damages to vindicate a technical right cannot be recovered in a negligence action if no actual damage has occurred.

LUBITZ v. WELLS

Superior Court of Connecticut, 1955. 19 Conn.Sup. 322, 113 A.2d 147.

TROLAND, Judge. The complaint alleges that James Wel1s was owner of a golf club and that he left it for some time lying on the ground in the backyard of his home. That thereafter his son, the defendant James Wel1s, Jr., aged eleven years, while playing in the yard with plaintiff, Judith Lubitz, aged nine years, picked up the golf club proceeded to swing at a stone lying on the ground. In swinging the club, James Wel1s, Jr., caused the club to strike the plaintiff about the jaw and chin.

Negligence al1eged against the young Wel1s boy is that he failed to warn his little playmate of his intention to swing the club and that he did swing the club when he knew she was in a position of danger.

In an attempt to hold the boy's father, James Wel1s, liable for son's action, it is al1eged that James Wel1s Was negligent because although he knew the golf club was on the ground in his backyard, that his children would play with it, and that although he knew "should have known" that the negligent use of the golf club by children would cause injury to a child, he neglected to remove the golf club fn the backyard or to caution James Wel1s, Jr., against the Use of the same

The demurrer chal1enges the sufficiency of the al1egations of the complaint to state a cause of action or to support a judgment against the father, James Wel1s.

It would hardly be good sense to hold that this golf club is obviously and intrinsically dangerous that it is negligence to leave lying on the ground in the yard. The father cannot be held liable on the allegations of this complaint.

The demurrer is sustained.

RESTATEMENT (SECOND) OF TORTS (1965)

§ 291. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct

Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.

§ 292. Factors Considered in Determining Utility of Actor's Conduct

In determining what the law regards as the utility of the actor's conduct for the purpose of determining whether the actor is negligent, the following factors are important:

(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;

(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;

(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.

§ 293. Factors Considered in Determining Magnitude of Risk In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:

(a) the social value which the law attaches to the interests which are imperiled;

(b) the extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;

(c) the extent of the harm likely to be caused to the interests imperiled;

(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.

ROBERTS v. STATE OF LOUISIANA

Court of Appeal of Louisiana, 1981. 396 So.2d 566.

LABORDE, JUDGE. In this tort suit, William C. Roberts sued to recover damages for injuries he sustained in an accident in the lobby of the U.S, Post Office Building in Alexandria, Louisiana, Roberts fell after being bumped into by Mike Burson, the blind operator of the concession stand located in the building.

Plaintiff sued the State of Louisiana, through the Louisiana Health and Human Resources Administration, advancing two theories of liability: respondeat superior and negligent failure by the State to properly supervise and oversee the safe operation of the concession stand. 'The stand's blind operator, Mike Burson, is not a party to this suit although he is charged with negligence,

[The trial court ordered plaintiff's suit dismissed.]

We affirm the trial court's decision for the reasons which follow, On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand to go to the men's bathroom located in the building. As he was walking down the hall, he bumped

into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5'6" and weighed approximately 100 pounds. Burson, on the other hand, was 25 to 26 years old, stood approximately 6' and weighed 165 pounds. * * *

Even though Burson was not joined as a defendant, his negligence or lack thereof is crucial to a determination of the State's liability. Because of its importance, we begin with it.

Plaintiff contends that operator Mike Burson traversed the area from his concession stand to the men's bathroom in a negligent manner. To be more specific, he focuses on the operator's failure to use his cane even though he had it with him in his concession stand.

In determining an actor's negligence, various courts have imposed differing standards of care to which handicapped persons are expected to perform. Professor William L. Prosser expresses one generally recognized modern standard of care as follows:

"As to his physical characteristics, the reasonable man may be said to be identical with the actor. The man who is blind ... is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet . . .. At the same time, the conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts. .. It is sometimes said that a blind man must use a greater degree of care than one who can see; but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind."

A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent blind person would under these particular circumstances. Mike Burson is totally blind. Since 1974, he has operated the concession stand located in the lobby of the post office building. It is one of twenty-three vending stands operated by blind persons under a program funded by the federal government and implemented by the State through the Blind Services Division of the Department of Health and Human Resources. Burson hired no employees, choosing instead to operate his stand on his own.

On the date of the incident in question, Mike Burson testified that he left his concession stand and was on his way to the men's bathroom when he bumped into plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining that he relies on his facial sense which he feels is an adequate technique for short trips inside the familiar building. Burson testified that he does use a cane to get to and from work.

Plaintiff makes much of Burson's failure to use a cane when traversing the halls of the post office building. Yet, our review of the testimony received at trial indicates that it is not uncommon for blind people to rely on other techniques when moving around in a familiar setting. For example George Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind operators that they should use a cane but he knows that when they are in a setting in which they are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if the operator is in a relatively busy area, the cane can be more of a hazard than an asset.

The only testimony in the record that suggests that Burson traversed the halls in a negligent manner was that elicited from plaintiffs expert witness, William Henry Jacobson. Jacobson is an instructor in peripathology, which he explained as the science of movement within the surroundings by visually impaired individuals. Jacobson, admitting that he conducted no study or examination of Mike Burson's mobility skills and that he was unfamiliar with the State's vending program, nonetheless testified that he would require a blind person to use a cane in traversing the areas outside the concession stand.

Upon our review of the record, we feel that plaintiff has failed to show that Burson was negligent. Burson testified that he was very familiar with his surroundings, having worked there for three and a half years. He had special mobility training and his reports introduced into evidence indicate good mobility skills. He explained his decision to rely on his facial sense instead of his cane for these short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson's explanation adequate, there was additional testimony from other persons indicating that such a decision is not an unreasonable one. Also important is the total lack of any evidence in the' record showing that at the time of the incident, Burson engaged in any acts which may be characterized as negligence on his part. For example, there is nothing showing that Burson was walking too fast, not paying attention, et cetera. Under all of these circumstances, we conclude that Mike Burson was not negligent.

Our determination that Mike Burson was not negligent disposes of our need to discuss liability on the part of the State.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiffs claims against defendant is affirmed and all costs of this appeal are assessed against the plaintiff-appellant.

Affirmed.

BREUNIG v. AMERICAN' FAMILY INS. CO.

Supreme Court of Wisconsin, 1970. 45 Wis.2d 536, 173 N.W.2d 619.

[Action for personal injuries received by plaintiff when his truck was struck by an automobile driven on the wrong side of the highway by Mrs. Erma Veith. The action was brought against Mrs. Veith's automobile insurance company under Wisconsin procedure which permits direct action against a liability insurer. The jury returned a verdict for

plaintiff, and defendant appealed.]

HALLOWS, CHIEF JUSTICE. There is no question that Erma Veith was subject at the time of the accident to an insane delusion which directly affected her ability to operate her car in an ordinarily prudent manner and caused the accident.

Tbe evidence established that Mrs. Veith, while returning home after taking her husband to work, saw a white light on the back of the car ahead of her. She followed this light for three or four blocks. Mrs. Veith could not remember anything else except landing in a field, lying on the side of the road, and people talking. She recalled awaking in the hospital.

The psychiatrist testified Mrs. Veith told him she was driving on a road when she believed that God was taking ahold of the steering wheel and was directing her car. She saw the truck coming and stepped on the gas in order to become air-borne because she knew she could fly because Batman does it. To her surprise she was not air-borne before striking the truck, but after the impact she was flying. The psychiatrist testified Erma Veith was suffering from "schizophrenic reaction, paranoid type, acute." He stated that from the time Mrs. Veith commenced following the car with the white light and ending with the stopping of her vehicle in the cornfield, she was not able to operate the vehicle with her conscious mind, and that she had no knowledge or forewarning that such illness or disability would likely occur.

The case was tried on the theory that some forms of insanity are a defense to and preclude liability for negligence. Not all types of insanity vitiate responsibility for a negligent tort. The question of liability in every case must depend upon the kind and nature of the insanity. The effect of the mental illness or mental hallucination must be such as to affect the person's ability to understand and appreciate the duty which rests upon him to drive his car with ordinary care, or if the insanity does not affect such understanding and appreciation, it must affect his ability to control his car in an ordinarily prudent manner. And in addition, there must be an absence of notice or forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness.

The policy basis of holding a permanently insane person liable for his tort is: (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid liability.

The cases holding an insane person liable for his torts have generally dealt with pre-existing insanity of a permanent nature and the question here presented was neitber discussed nor decided. The plaintiff cites Sforza v. Green Bus Lines (1934) 150 Misc. 180, 268 N.Y.S. 446; Shapiro v. Tchernowitz (1956) 3 Misc.2d 617,155 N.Y.S.2d 1011; Johnson v. Lambotte (1961) 147 Colo. 203, 363 P.2d 165, for holding insanity is not a defense in negligence cases. Sforza and Shapiro are New York trial court decisions which do not discuss the question here presented and are unconvincing. In Johnson, the defendant was under observation by order of the county court and was being treated in a hospital for "chronic schizophrenic state of paranoid type." On the day in question, she wanted to leave the hospital and escaped therefrom and found an automobile standing on a street with its motor running a few blocks from the hospital. She got into the car and drove off, having little or no control of the car. She soon collided with the plaintiff. Later she was adjudged mentally incompetent and committed to a state hospital. Johnson is not a case of sudden mental seizure with no forewarning. The defendant knew she was being treated for mental disorder and hence would not come under the nonliability rule herein stated.

We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed, but their rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident.

We need not reach the question of contributory negligence of an insane person or the question of comparative negligence as those problems are not now presented. All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.

An interesting case holding this view in Canada is Buckley & Toronto Transp. Comm'n v. Smith Transport, Ltd. [1946] Ont.Rep. 798, 4 Dom.L.Rep. 721, which is almost identical on the facts with the case at bar. There, the court found no negligence when a truck driver was overcome by a sudden insane delusion that his truck was being operated by remote control of his employer and as a result he was in fact helpless to avert a collision.