An Introduction to Torts and Negligence Law

No matter what, where, or who, anyone can sue anyone else for anything. This doesn’t mean any lawsuit will make it past a motion to dismiss and it certainly doesn’t mean they’ll win, but anyone can sue for anything and make you spend money to defend yourself.

Negligence law falls under the legal category known as torts, a term for when someone harms someone else.  The person being sued is known as the tortfeasor.

Torts are split by the degree of culpability into intentional, negligence and strict liability. Negligence is in between intentional and strict liability on the intentionality scale, and would include situations such as a car accident, or accidentally lighting property on fire with your candles.  It’s when you harm someone or their property without meaning to do harm.

In a lawsuit there are things known as elements of the cause of action, which is what the person is suing about.  And when they sue, the person has to prove all the essential elements, meaning they prove they are telling the truth about what happened, the tortfeasor is liable for the damage.

There are four essential elements of negligence: duty, breach, causation, and injury.

1. Duty

Duty is the responsibility someone has in regards to another. Doctors have a duty to their patients, parents have a duty to watch out for their kids, and people driving have a duty to look out for others on the road. There are different standards of care that people can owe to each other depending on the relationship. The standard for average dealings with strangers is that of the reasonable person.  How would a reasonable person have acted in this situation?

2. Breach

Breach is when someone fails in their duty. For example, the doctor did not follow up with the patient after surgery as quickly or often as the industry standard said he should, the parent left the child alone for a few hours, or the person driving her car looked down at her phone to check a text, thus taking her eyes off the road.

Just because everybody does something doesn’t mean it’s reasonable. For example, many people look at their phone when driving occasionally, even just to make a quick call.  This would usually be found to be a breach of the duty to take care while driving.

The primary exception to this is for professionals. In this type of situation, for example a doctor being sued for malpractice, then one would take into consideration industry standards to see if that person’s actions constituted a breach of duty. 

3. Causation

The third element is causation, and this is the hardest part to prove.  Causation involves two parts:

• The tortfeasor has to be the but-for cause of the injury, as in “but-for the person driving”, the person walking would not have the broken leg.  Or “but-for the doctor performing surgery to get the tumor out”, the patient would still be alive that day.
• The second part is known as proximate cause or direct cause. This means that the tortfeasor caused a direct action that sets in motion an unbroken chain of events leading to the injury with no interference to break the chain. It can get more complicated if multiple events are joined together to make the injury happen, any one of which taken away would have prevented the injury, but the general idea is one cause leads to a chain of events that leads to the injury without something interfering. 

So if Driver A goes through the crosswalk and cuts off the pedestrian then keeps going, and then the pedestrian walks out into the road a few seconds later than she would have otherwise, and gets hit by Driver B, Driver A is a but-for cause, but not a proximate one, since there was an intervening force, which was Driver B.

4. Injury

Injury is fairly self-explanatory. For example, someone is dead, has a broken leg, or has ruined property. Without injury, there are no damages.

This should mean if a person comes out fine with you almost hitting them with your car or a piano then you’re safe, but it doesn’t always. That person still can claim emotional damages because you scared them by almost hurting them. This doesn’t mean they’ll win in court, but they can still sue.

Because as I stated at the beginning of the article, anyone can sue anyone else for anything.