>> Episode 4.1.
"Overview of Negligence."
This episode provides an overview
of the negligence cause of action
and compares it to intentional tort liability.
Remember that there are three main types of tort liability.
Intentional torts, negligence, and strict liability.
Intentional tort is not a cause of action in itself.
Instead, it is a category made up
of multiple causes of action
including battery, assault,
false imprisonment, trespass, conversion, et cetera,
each with its own prima facie case.
And strict liability is also an umbrella term
used to describe a few exceptional situations
where the law assigns liability to the defendant
even where the harm was caused by accident,
unlike intentional torts,
and even where the defendant was careful, unlike negligence.
Negligence works differently.
Most jurisdictions treat it as a single cause of action,
not a category or umbrella term.
The prima facie case of negligence
is made up of four elements--
duty, breach, causation, and damages.
First, the defendant must have owed a duty to the plaintiff.
Second, the defendant must have breached that duty
by failing to exercise due care.
Third, the defendant's breach must have been the actual
and proximate cause of the plaintiff's injuries.
And fourth, the plaintiff must have suffered actual harm
to person or property.
Now, let's compare intentional torts and negligence
in more detail.
Unlike strict liability, intentional torts and negligence
are both based on fault,
but fault is established in many different ways.
We talked about several intentional tort
causes of action,
but the basic idea behind all of them,
whether we're talking about battery or trespass,
false imprisonment or assault,
is that the defendant is liable for a deliberate
or intentional invasion of the plaintiff's
legally protected interest.
The defendant's volitional act with intent
to cause an invasion of the plaintiff's
legally protected interest
is what makes her conduct wrongful
in the case of intentional torts.
Negligence law is different.
The defendant is liable for an unreasonable,
but not deliberate, invasion of the plaintiff's interests.
The duty and breach elements combined
are what makes the defendant's conduct wrongful.
Under the duty element, the plaintiff must show
that the defendant owed a duty to the plaintiff
to be careful.
In most negligence cases, the duty element
is easily established by the plaintiff.
And that's because in cases where the defendant
is engaged in some kind of affirmative activity,
whether it's driving a car or operating a chemical plant,
the general rule is that she owes a duty
to conduct that activity with reasonable care,
so as to avoid causing foreseeable injury
to other people or their property.
Under the breach element, the plaintiff must show
that the defendant breached the duty to be careful.
Or in other words, that the defendant's conduct
fell below the standard of care required
under the circumstances.
Note that the breach required for negligence liability
is considerably broader than the act required
for intentional tort liability.
For one thing, negligence liability can be based
on a non-volitional act.
For example, if I fall asleep while driving
and hit a pedestrian,
I would probably be liable for negligence,
but not for battery.
There would be no liability for battery
because when I got behind the wheel,
I did not intend to hurt anyone,
nor did I act with substantial certainty
that someone would be hurt.
But there would be liability for negligence
because it's careless to fall asleep while driving.
Also, under certain circumstances,
an omission can be the basis of negligence,
whereas an omission is rarely the basis
of an intentional tort.
For example, if I operate a driving range
that's located next to a jogging path,
I might be negligent for failing to erect
a sufficiently high fence or net
to keep golf balls from hitting joggers.
I owe a duty to operate my driving range with due care
and I owe that duty to anyone who might
foreseeably be harmed if I am not careful.
My failure to erect a barrier between the driving range
and the jogging path probably amounts
to a breach of my duty.
Together, duty and breach establish the wrongfulness
of the defendant's conduct, taking the place of intent
in establishing fault.
Another difference between negligence and intentional torts
is that the law of intentional torts protects interests
that go beyond being free from actual physical harm
or property damage.
Even if it is only the plaintiff's feelings
or sense of dignity that's hurt,
that can be sufficient for purposes
of intentional tort liability.
If I spit in your face,
you might not be physically injured,
but I could be liable for battery nonetheless
because the contact offends your dignity.
Negligence is different.
The plaintiff generally must show actual harm,
also referred to as "damages,"
in the form of personal injury or property damage.
Emotional harm or harm to dignity alone
are generally insufficient for negligence liability.
If I carelessly cause spit to fall onto your face
without deliberately making it happen,
I would only be liable for negligence
if you can show that you were actually injured in some way.
Perhaps because you developed an eye infection.
It's also important to note that intentional torts
and negligence are subject to distinct defenses.
The various privileges for intentional torts--
consent, self-defense, defense of others,
defense of property, private necessity,
and public necessity-- do not apply to negligence liability.
The two affirmative defenses to a claim of negligence
are assumption of risk, which is somewhat similar
to the consent defense to intentional torts...
and contributory or comparative negligence,
which is based on the argument
that the plaintiff's own negligence
contributed to his injuries,
and thus, his recovery of damages should be reduced
or even barred altogether.
Before we delve into negligence law
in the episodes that follow,
there are two key concepts that are important
to highlight at this point.
Reasonableness and foreseeability.
You may have already noticed that these two concepts
come up again and again in the various elements
of the prima facie case and affirmative defenses.
You may also have noticed that unreasonableness
and foreseeability are related to each other.
Whether an act or omission is unreasonable--
and thus amounts to a breach of the duty
to be careful, for example--
depends partly on whether or not you might be able
to foresee that harm would occur as a result
of the act or omission.
And the test for foreseeability begs the question
of who might be able to foresee harm.
And the answer is a reasonable person.
So foreseeability is sometimes referred to
as "reasonable foreseeability."
Both of these concepts are sort of slippery.
They don't provide much in the way of a bright line rule
that makes it easy to say, "Yes, that's reasonable,"
or "No, that's unreasonable."
"Yes, that's foreseeable," or "No, that's unforeseeable."
Making these determinations is often left to the jury.
In close cases, the point isn't so much to know the answer,
to be able to predict with certainty
whether this or that will be deemed reasonable
or foreseeable.
The point is to learn how to make the arguments
on both sides,
and especially how to frame those arguments
in terms of the relevant legal principles.
We'll return to these two concepts repeatedly
in the episodes that follow.