Abnormally Dangerous Activities
Negligence (Defining Reasonable Care)
Negligence per se (Statutory Violation)
The first step in establishing liability is to show that there is something about what the defendant did that justifies imposing the cost of the plaintiff's injury upon the defendant rather than the plaintiff. It may be, for example, that the defendant acted negligently; alternatively, the defendant may have acted with reasonable care, but was engaged in an activity that creates such a high risk of danger that accidents caused by that activity should be borne by the defendant rather than the innocent victims. In most cases the plaintiff can establish a breach of duty either by showing that the defendant was negligent OR by establishing that the defendant is subject to strict liability.
Negligence (Defining Reasonable Care)
Negligence is defined as the failure to use ordinary care. Ordinary care is what a reasonably prudent person would do in the same or similar circumstances. Ordinary care is also referred to as reasonable care. Because the standard of reasonable care is so general, it is usually necessary to examine the facts and circumstances of the particular case to determine whether reasonable care was used.
Even if we have carefully defined what constitutes reasonable care (or the lack thereof), we must decide what kinds of evidence will be relevant to the determination of reasonable care, and what effect that evidence will have.
Abnormally Dangerous Activities
Some activities carried on in society are useful, but carry with them a very high degree of danger. These activities may produce injury even when reasonable care is used, and the magnitude of the harm is often so great that the plaintiff would have no way of avoiding the risk. For example, tankers that carry large quantities of gasoline, or companies that manufacture explosives, rarely cause injury, but when they do the effect is often catastrophic. Whether or not an activity is abnormally dangerous is judged by the criteria established in the Restatement of Torts. These criteria are: (1) whether the activity poses a high risk of harm; (2) whether the harm, if it occurs, is likely to be great; (3) whether accidents occur even when reasonable care is exercised; (4) whether the activity is commonly engaged in; (5) whether the activity is appropriate to the place where it is carried on; and (6) whether the activity is of low value to the community.
Even where a defendant is engaged in an abnormally dangerous activity, he is only responsible for that which makes the activity abnormally dangerous; for example, a tanker carrying gasoline may strike and injure a child on a bicycle. The plaintiff would still have to show that the plaintiff acted negligently, because the risk of harm did not arise from the release or ignition of the flammable cargo that made the activity abnormally dangerous.
A traditional source of strict liability is injury inflicted by animals that escape from the custody of the owner. However, an owner is not liable for such injuries unless the owner knows the animal is dangerous. Some animals (tigers, for example) are presumed dangerous. Others, such as domestic animals like dogs, are presumed docile, but once the owner has reason to know of the animal's ferocity, the owner becomes strictly liable even is he uses reasonable care to restrain the animal from causing injury.
One useful way to establish that the defendant was negligent is to point to some policy adopted by the defendant that would have prevented the injury if it had been followed in the plaintiff's case. These efforts are treated differently, depending upon whether they are adopted before or after the accident. For example, where a street car company adopts a policy prior to the accident that street car conductors should ring a bell before entering an intersection, the plaintiff can use the "disobedient servant" as evidence that reasonable care required use of that safety precaution. On the other hand, courts as a policy matter have excluded evidence of safety measures adopted by the defendant after the accident. Evidence of post-accident repairs or subsequent remedial measures is usually inadmissible. The concern in the case of post-accident repairs is that a rule allowing their use as evidence of pre-accident negligence would discourage defendants from adopting measures that might be very important for public safety. While one might construct an argument that a similar disincentive would attach to defendants who are composing company rulebooks, courts have allowed the pre-accident repair measures (where disobeyed), but not the post-accident repair measures.
In many tort cases the defendant was engaged at the time of the accident in an activity that was common to the industry to which he belonged. For example, in the T.J. Hooper case the defendant operated a tugboat that transported barges along the Eastern seaboard. In deciding whether or not the defendant was using reasonable care in that operation, the court would ordinarily consider how other people, situated similarly to the defendant, conduct their operations. If a safety measure is in common use, it suggests that it is one that reasonable people would take, and the converse is also true. However, the court in T.J. Hooper announced that the custom of the industry is not dispositive of the liability issue; the plaintiff can always argue that the whole industry was lax in adopting appropriate safety measures (in the tugboat case, radios that would warn of adverse weather).
One way for the plaintiff to establish negligence is to appeal to the jurors' sense of what is reasonable behavior based on their own experience. For example, if the defendant loses control of his car because he is trying to swat a wasp that flew in the window, the jurors may have enough familiarity with the situation to decide on their own what constitutes reasonable care, and whether the defendant met that standard.
Oftentimes there is no established pattern against which to measure the defendant's behavior. In such circumstances the finder of fact should consider the relative cost of accident prevention formulated as B<P*L: Is burden of preventing the injury) compared with the average loss to be suffered if the injury occurs, multiplied by the probability that the injury will occur. This test has often been referred to as a test of economic efficiency, since it suggests that a deefendant is expected to employ measures only when they are cost efficient.
Negligence per se (Statutory Violation)
A very effective way for the plaintiff to establish negligence is by showing that the defendant was violating a statute when the accident occurred--for example, by speeding or driving at night without proper lights. Some courts have held that an unexcused statutory violation is more than just evidence of negligence; it is negligence per se or negligence as a matter of law. What this means is that it is no longer for the jury to decide whether the defendant used reasonable care--the judge will declare the defendant negligent as a matter of law. This requires proof that (1) a statute was in fact violated (dispute over how fast the defendant was going, for example, will be left for the jury to decide); (2) the statute was designed to protect against this kind of injury (rather than, for example, collecting taxes or avoiding a different kind of harm); and (3) the violation was unexcused. Note that even if the defendant is negligent as a matter of law, it doesn't necessarily show that such negligence caused the injury.
A defendant is subject to strict liability for injuries caused to an owner of real property where that owner has suffered an unreasonable interference with his property rights. The main difference between this standard and the negligence standard is that some interference may be unreasonable (for example, the drifting of noxious odors or cement dust), even though the defendant is using reasonable care in operating the facility. Most nuisance cases today are governed in the first instance by zoning ordinances that specify the uses of property that are appropriate to a given area.
If a plaintiff establishes that the defendant's activities constitute a nuisance, the plaintiff is usually entitled to have the court order injunctive relief as well as damages. The court's power to enjoin a nuisance is subject to general equitable rules, and where the situation warrants a creative remedy, the court may split the damage and injunctive relief, such as was done in Boomer v. Atlantic Cement.
Coming to the nuisance. In determining whether the defendant's activity is a nuisance, courts have looked in part to the expectations of the parties when they purchased their property. Long-standing use of the property for some purpose that would otherwise be noxious (e.g., conducting a cattle feedlot or operating an airport that produces loud noise and vibration) may make it difficult for a plaintiff who moves into the environment to establish that the defendant's activity is a nuisance. However, even if the plaintiff is guilty of "coming to the nuisance," that is only one factor to consider in determining the parties' reasonable expectations and in balancing the equities.
Evidence of post-accident repairs or subsequent remedial measures are usually inadmissible. The concern in the case of post-accident repairs is that a rule allowing their use as evidence of pre-accident negligence would discourage defendants from adopting measures that might be very important for public safety. While one might construct an argument that a similar disincentive would attach to defendants who are composing company rulebooks, courts have allowed the pre-accident repair measures (where disobeyed), but not the post-accident repair measures.
The standard of reasonable care is based upon determining what a reasonable person would do in the same or similar circumstances. Because it is based upon the peculiar factual circumstances of each case the jury must exercise its own judgment about what was appropriate. Some characteristics of the defendant may be considered part of the "circumstances"; for example, if a child is accused of negligence, the question for the jury may be, "What would a reasonable [child] do in those circumstances?" On the other hand, where children engage in adult activities, such as operating motorized vehicles, they may be held to an adult standard.
The plaintiff has the burden to show that the defendant was negligent. This must be based upon evidence—testimony from a witness who saw the defendant speeding; skid marks; the defendant's own description of what he did, etc. Sometimes, however, the evidence of negligence is destroyed in the accident—for example, where a skywalk collapses, or a powder factory blows up, or a gasoline truck crashes and burns. In such cases it is logical to infer negligence, but there is no proof that would tell one way or another. In such cases the plaintiff may ask the judge to infer negligence based upon the maxim res ipsa loquitur—“the thing speaks for itself.” To qualify for a res ipsa instruction, the plaintiff must show (1) that the accident was the type of accident that ordinarily doesn't occur except where there has been negligence; (2) the defendant had exclusive control of the instrumentality or process that caused the injury; and (3) other potential causes, such as negligence on the part of the plaintiff or third parties, have been sufficiently eliminated.
While most cases require proof of negligence on the part of the defendant, some injuries lead to strict liability. In order to qualify for strict liability, the plaintiff must show that the case falls within one of the designated classes of cases where strict liability has been permitted.
Useful Evidence of Negligence
Even if we have carefully defined what constitutes reasonable care (or the lack thereof), we must decide what kinds of evidence will be relevant to the determination of reasonable care, and what effect that evidence will have.