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Autor:  hamidhd  02 November 2011
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Assignment No: 3

Done and submitted by: Hamid ebadi fard

Common law:


Q1. Define Tort and write a note on differences between contractual and tortuous liability.

Ans) Tort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or "liable," for those injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents. In contrast to criminal law (in which the offense is against the State and the State is the plaintiff), in tort law, the offense is against a person and that person is the plaintiff.

For instance, Alice throws a ball and accidentally hits Brenda in the eye. Brenda may sue Alice for losses occasioned by the accident (e.g., costs of medical treatment, lost income during time off work, and pain and suffering). Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortuous conduct. Here, Brenda would attempt to prove Alice had a duty and failed to exercise the standard of care which a reasonable person would render in throwing the ball.

One of the main topics of the substance of tort law is determining the "standard of care"—a legal phrase that means distinguishing between when conduct is or is not tortuous. Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else.

Returning to the example above, if Alice threw the ball at Brenda purposely, Brenda could sue for the intentional tort of battery (and the action might also, separately, be a crime against the State). If it was an accident, Brenda must prove negligence. To do this, Brenda must show that her injury was reasonably foreseeable, that Alice owed Brenda a duty of care not to hit her with the ball, and that Alice failed to meet the standard of care required.

In much of the western world, the touchstone of tort liability is negligence. If the injured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. Tort law also recognizes intentional torts and strict liability, which apply to defendants who engage in certain actions.

In tort law, injury is defined broadly. Injury does not just mean a physical injury, such as where Brenda was struck by a ball. Injuries in tort law reflect any invasion of any number of individual "interests." This includes interests recognized in other areas of law, such as property rights. Actions for nuisance and trespass to land can arise from interfering with rights in real property. Conversion and trespass to chattels can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.

Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment.

The equivalent of tort in civil law jurisdictions is depicting. The law of torts can be categorized as part of the law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to all those subject to the relevant jurisdiction. To behave in 'tortuous' manner is to harm another's body, property, or legal rights, or possibly, to breach a duty owed under statute. One who commits a tortuous act is called a "tortfeasor". Torts is one of the American Bar Association mandatory first year law school courses.

Contractual liability

Contractual liability is defined as liability that does not arise by way of negligence, but by assumption under contract or agreement. Although it is frequently misunderstood, this type of liability is critical in the insurance and risk management industries. It is common in business agreements (written or oral), for one party to assume the liability of another. This is sometimes referred to as a hold harmless agreement. The full extent to which one holds another harmless varies from project to project, contract to contract, job to job and so on. To assume liability of another is risky and increases your exposure to loss. That is why insurance is required. Contractual liability insurance is usually provided with commercial liability insurance - but you should always ask your agent to make sure. There will also be some exceptions and limitations, so again ask your agent and thoroughly read through your policy so that you know what is and what is not covered.

Outside of insurance, contractual liability has a broad meaning - it's basically a promise that may be upheld in court. For example, say you agree to build someone a deck for $600 and collect $300 as a retainer prior to starting the job. In the meantime, a higher paying project comes along and you never show up to put on the deck. The other party can take you to court and collect the original $300 that they paid you. You were in breach of contract and therefore they had a justified contractual liability claim.

Tortuous Liability

The role of defenses in the law of tort is to limit the liability of the defendant or in some cases exonerate the defendant completely from tortuous liability. Some defenses to tortuous liability include contributory negligence, consent (or assumption of risk) and illegality. Until recently, common employment was recognized as a defense until it was abolished by the Law Reform (Personal Injuries) Act 1948. The doctrine of common employment provided that an employee impliedly took the risk of any injuries at work caused by the negligence of a fellow employee. The defense of consent (i.e. assumption of risk) or violent non fit injuries under which the claimant may be taken to have assumed the risk of damage flowing from the defendant breach of duty, has limited application today and mainly in personal injury cases.

It need not be mentioned here that further narrowing of the scope of defense has been achieved by virtue of Unfair Contract Terms Act 1977, which restricted the use of contract terms and notices to exclude or limit tortuous and contractual liability. Other defenses available to a defendant are necessity and private defense, inevitable accident, authorization and limitation of action. Contributory negligence provides a partial defense to a claim in tort in a case where the claimants own carelessness was a material or significant cause of his loss, damage or injury. Before the enactment of the Law Reform (Contributory Negligence) Act 1945, contributory negligence as a defense had the effect of excluding or defeating the plaintiff claim completely. Today the Court will normally apportion responsibility for the loss between the plaintiff and defendant wherever the defendant successfully raises the defense of contributory negligence, i.e. that the plaintiff contributed to his loss or injury or damage. Even after the occurrence of the injury or tort, what the plaintiff does may still amount to contributory negligence and may have the effect of reducing the damages that he many ultimately recover from the defendant. The plaintiff owes himself a duty to mitigate his loss and not to aggravate his injury. Indeed, a plaintiff who has suffered damage in consequence of an accident for which the defendant is wholly responsible may be guilty of contributory negligence, although his conduct in no way contributed to the accident itself. If his act or omission contributed to the nature or extent of the injuries which he has sustained as a result of the accident.

Hence a motor cyclist who fails to wear a crash helmet in circumstances where a prudent road-user would do so and who is injured in an accident, may be held in part responsible for the injuries which he would not have received if he had been wearing a helmet, even though he was in no way to blame for the occurrence of the accident. For example the case of Connell Jackson (1971) 3 ALLER 129

In the above case, the failure of the plaintiff to wear a crash helmet was held to constitute contributory negligence and accordingly led to a reduction in the compensation awarded to the plaintiff by the Lower Court on the basis of full liability. See also the provisions of Section 4 of the Law Reform (Contributory Negligence) Act 1948, which states that, "where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons the damages recoverable in respect of thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant share in the responsibility for the damage. "While the tort of negligence deals with harm to others, contributory negligence relates to harm to oneself.

Accordingly Lord Denning L. J. in attempting to illustrate contributory negligence has said in the case of Jones v. Livox Quarries Ltd. (1952) 2 QB. 608 at 615 that, "just as actionable negligence requires foresee ability of harm to others, so contributory negligence requires the foresee ability of harm to oneself." The

Learned Lord Justice went further to observe that "A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself, and in his reckonings he must take into account the possibility of others being careless." Therefore it is trite law that in personal (accident) injury litigation, if, as a result of his contributory negligence, a plaintiff suffers greater injury than he would otherwise have sustained, his entitlement to compensation should reflect that fact. Similarly, in the ordinary way the driver of a vehicle or front seat passenger in a motor vehicle who failed to wear a seat belt and was injured in an accident had to bear some responsibility for those injuries, even though he was not responsible for the accident, if the injuries would have been avoided, or their extent reduced by wearing a seat belt. Thus, where a car driven by the plaintiff collided with another car driven by the defendant and the plaintiff was not responsible for the accident which was wholly attributable to the defendant negligent driving, the Court of Appeal allowed the defendant appeal and reduced the damages awarded to the plaintiff. In the instant case, the plaintiff was not wearing the seat belt, which was fitted to his seat at the time of the accident. The plaintiff suffered injuries to the head and chest, which would have been avoided if he had been wearing his seat belt. See the case of Froom and Others v. Butcher (1975) 3 ALLER. 520. Note that in the case of pregnant women or fat or obese persons who may have legitimate reasons for not wearing a seat belt, every driver of a vehicle and ever front seat passenger have a duty to take reasonable precautions for is own safety by wearing a seat belt at all times. It is hardly an excuse or justification that he believed that it would be more dangerous to do so, or that the journey was one which involved a high risk, or that the omission to wear the seat belt was attributable to mere forgetfulness. Prior to the above case reaching the Court of Appeal, there has been a remarkable conflict of opinion involving seat belt cases among judges. Half the judges think that, if a person does not wear a seat belt, he is guilty of contributory negligence and his damages ought to be reduced, while the other half think that it is not contributory negligence and they ought not to be reduced.

Presently the current trend of judicial opinion is that it is contributory negligence not to wear a seat belt and in the kaleidoscopic nature of tortuous liability under negligence, once the parties finished with the relevant question of "what was the cause of the accident?" they will normally proceed to the equally-important question of "what was the cause of the damage?" Therein comes the issue of contributory negligence, which if successfully pleaded reduces the damages which the plaintiff may recover".

Note however that in every case, the burden of proving on the balance of probabilities that a plaintiff had contributed to the damage suffered lay on him who alleges it. Hence where the defendant failed to discharge this burden, there will be no reduction in the sum of damages due to the plaintiff owing to his failure to wear seat belt. Thus where the plaintiff and the defendant were out in the defendant car to spend the evening together drinking in public houses, and having consumed a considerable quantity of beer within a relatively short period before they started the journey home, the car was involved in an accident as a result of the defendant negligent driving. The plaintiff who was in the front passenger seat was not wearing the seat belt, which was fitted in the car. The plaintiff sustained sever and permanent injuries on the accident. It appeared that even if the plaintiff had been wearing a seat belt he would have suffered some injury and there was no evidence of the extent to which the injuries were attributable to his failure to wear the seat belt. Hence no reduction of the plaintiff damages was allowed on this ground in the instant case. For example the case of Owens v. Brimell (1976) 3 ALLER 765

In the case of Gough v. Thorne (1966) 3 ALLER 398, the Court on the ground of policy considerations refused to attribute contributory negligence to a 13 year old girl who crossed a road at signal of a halted lorry driver without pausing to see if a vehicle was wrongly overtaking the lorry on the far side despite the driver signal. The Court of Appeal overturning the Lower Court, which found that, the plaintiff was negligent in advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right, held that an ordinary child of 13 ? Years (unlike an adult) could not reasonably be expected to pause to see for herself whether it was safe to go forward when the lorry driver had beckoned her on, and so the plaintiff had not been negligent in relying entirely on the lorry driver signal to her to cross. Note that this case as rightly pointed out in the editorial note to the case relates only to the question of Contributory negligence on the part of children. Besides, in appropriate circumstances, there can also be the question of liability of the parent or other person in charge of the child for allowing the child to be on a busy street unaccompanied. See the case of Carmarthenshire County Council v. Lewis (1955) 1 ALLER 557 per Lord Keith. According to Lord Denning in the case of Gough v. Thorne, a very young child cannot be guilty of contributory negligence (1966) 3 ALLER 398 at 399. It should also be noted that a person will be liable to be found guilty of contributory negligence if he travels as a passenger with a driver whom he knows has consumed alcohol in such a quality as to impair to a dangerous extent the driver capacity to drive safely or, if, knowing that he was going to be a passenger in the driver car later, he accompanies the driver on about of drinking which, as well as diminishing the driver capacity to drive safely, also had the effect of driving the passenger of his own capacity to appreciate danger.

Q2. Advise CTC and in light of decided cases explain the principle of Occupier's Liability :

Ans) Brief on Occupier's liability Act


Two specific Acts of parliament replaced the common law position and provide a common duty of care. The same duty of care now applies to all visitors. The occupier must take reasonable care to ensure that visitors will be reasonably safe in using the premises for the purposes for which they are invited.

In 1984 the law was amended to provide some responsibility on the occupier to protect people other than visitors, for example the trespasser.

The Occupier's Liability Act

In terms of the Occupier's Act (the act) the occupier now owes the same duty of care to all visitors but is able to extend, restrict, modify or exclude the duty either by agreement or in some other way such as a Warning Notice.

The duty imposed on the occupier is the 'common duty of care' This duty of care is a duty 'to take such care as in all the circumstances of the case is reasonable to see that visitors will be reasonably safe in using the premises for the purposes for which they were invited or permitted by the occupier to be there'.

Occupancy and activity duty

There are two types of duty. The first is an occupancy duty and the second is an activity duty. An occupancy duty relates to the state of the premises. That may include a defective stair rail, rotten floorboards, broken handrail and the like. An activity duty relates to that which is done on the premises. An example would be the use of a forklift in a supermarket.

What is the common duty of care?

It is clearly required that the occupier avoids negligent acts or omissions. In the following situations the occupier has been held liable on the facts:

• A failure to put down mats or mop up melted snow in the entrance of a public library.

• In respect of an injury sustained by a cleaner who slipped on a floor so polished that it was dangerous.

• For an injury to a passenger on the Queen Elizabeth who slipped on linoleum on a sloping floor. The slope was too slippery due to linoleum having been newly laid and not treated with sealing material.

Identifying the occupier

Once again the act does not provide a definition for Occupier. In essence it is any person who has a sufficient degree of control over premises to be able to ensure the safety of those thereon. The occupier need not have complete or entire control over the premises but there is a requirement that there be some actual physical control.

A landlord who lets premises to a tenant is treated as having parted with control of the premises. This is so even if there is a duty on the landlord to carry out repairs.

Where a landlord has excluded common parts from the leased premises, it is generally accepted that they do remain the occupier. A landlord would therefore occupy a common entrance hall, staircase, balcony, forecourt and the like.

By way of summary an occupier may be an owner in occupation, a tenant or any person who has the right to possession of premises. The concept is a very inclusive concept with the only exception being the immunity of a landlord who lets or sells his house.

The answer in each case depends on the particular facts of the case and especially on the nature and extent of the occupation or control enjoyed or exercised over the premises.

Identifying the visitor

A visitor is a person who enters property under a license or by invitation. It may be express or implied. When entering a public house or shop there is usually a license by implication. If you were entering following an invitation, then it would be an express invitation.

The duty of care is the same. In the case where the person is a trespasser, they cannot be a visitor and the occupier will not be liable under this act.

Difficulties can arise in cases where a person without authority invites a person on to land. If a servant or agent of the occupier has authority to invite a person on to land and does so that person is a visitor.

If that servant or agent acts outside the authority difficulties may arise and there is no straightforward answer. The court will have to decide in all the circumstances whether the agent acted with due authority in allowing the person into the premises as a visitor.

Permission to enter premises

Permission to enter premises may be limited to an area. An implied license may be limited to those places into which the visitor may be likely to go, in the reasonable belief that they were entitled or invited to go there.

Should a visitor enter an area accidentally the visitor will not automatically be regarded as trespassing. It will depend on whether there was reasonable warning not to enter a particular area and to what extent the occupier was negligent in failing to make it clear to the visitor that there are restrictions.

Permission to enter can be limited to time. For example remaining in a public house after closing time without permission will lead to a visitor becoming a trespasser. A license may be withdrawn, but if it is, then the withdrawal must be clear and explicit. A reasonable time to leave must be given before the visitor becomes a trespasser.

Finally a license can be for a limited purpose. The classic situation is a person who enters is shop to view the merchandise is a visitor. However if their entry is with the intention of stealing then that person is a trespasser.

Entry as of right

Anybody who lawfully uses premises provided for the public is a visitor. This includes parks, libraries and conveniences. Further any persons who enter premises in exercise of a right granted by law are visitors irrespective of whether the occupier consents. For example a policeman who enters premises with a search warrant or employees of public utilities is visitors.

Public and private rights of way

A person who exercises a public or private right of way is not a visitor. Accordingly the occupier owes no duty to that person under this act. The position may be different where the landlord has retained some degree of control over the property. Persons entering upon areas over which the landlord has retained control can argue that they are visitors and in the case of injury the landlord will be responsible.

Duty to trespassers

As mentioned previously trespassers are not visitors and will not be afforded any protection under the Act. Further they cannot be invitees or licensees.

Matters relevant

In performing the task of assessing whether an occupier has done or not done what is in fact reasonable and whether in the particular circumstances of the case the visitor was reasonably safe the following points should be considered:

• How obvious the danger is.

• Any warnings.

• The level of lighting (if any).

• The existence of a fence or other barricade.

• The age of the visitor.

• For what purpose there was a visit.

• How the visitor was expected to behave.

• The actual knowledge the occupier had or ought to have had.

• The actual cost of removing the danger is a relevant factor that should not be ignored.


This is always a difficult area to assess. If the visitor was expected to use the staircase in the dark then the occupier owes the visitor a duty of care to make the use of the stairs reasonably safe. This may involve additional lighting or guarding. This does not mean that in all circumstances there is a responsibility on the occupier to light common staircases at all times.

Where the visitor is aware that there is no lighting and takes the risk of climbing the staircase, they may be found to have contributed to their misfortune.


The act provides for the occupier to be prepared for children to be less careful than adults. This is because children do not have the same concept of danger as found in adults. Also very young children are unlikely to be able to read warning signs or have the same comprehension of risk.

Finally children are known to have a spirit of discovery. They are curious and inquisitive and may be lured by objects that are outside the scope of their permission to enter.

Examples of situations dangerous to children include:

• Poisonous berries of an attractive appearance in a public park.

• An unattended horse and cart.

• An escalator.

• A paddling pool that was provided by a local authority for children to play in, but unfortunately contained a piece of glass hidden in the sand.

• An unsafe wall on which children were known to be in the habit of bird's-nesting.

Responsibility of parents

The responsibility for the safety of little children must rest primarily on the parents. It is their duty to see that they do not wander about on their own. They should satisfy themselves that the places where children are allowed to go unaccompanied are safe for them to go.

It is not acceptable as a matter of course for parents to shift the burden of looking after children to others who happen to have a bit of accessible land. In the case of a public park or other recognized playing grounds the situation is different. Parents allow their children to go there in the reasonable belief that they are safe.

Exercise of a calling

An occupier may expect that a person in the exercise of their calling will appreciate and guard against any special risk ordinarily incident to it. This is obvious. Clearly if a suitably qualified person is engaged to carry out work then it is reasonable to expect that they will identify the risks and reasonably protect themselves from them.

Warning of danger

Where a warning has been given it will not absolve the occupier of liability, unless in all the circumstances it was enough to enable the visitor to be safe. The issue would be whether the warning was sufficient to enable the visitor to be reasonably safe.

The warning notice must be capable of being understood and must be clear in it's content so that the visitor is made aware of the nature and location of the danger and can take steps to avoid it.

Knowledge of the risk

Mere knowledge of a danger on the part of a visitor does not absolve an occupier from their duty of care to the visitor. The knowledge must enable the visitor to take reasonable precautionary measures.

Subject to the Unfair Contract Terms Act 1997, an occupier can exclude liability under contract. They can do so by including a specific term in the contract or by notice. A business occupier's ability to restrict liability is limited by the 1997 Act. Liability for death or personal injury cannot be excluded at all.

The Case:

Under the Occupier's Liability Act; it is the responsibility of the landlord (score bowling) to support the person holding their property. But in this case even after Harrison had complained about the lack of faulty rail in the past no action had been taking about it.

Hence he can sue the landlord for all the injuries that she faced and also sue land lord for not providing him with proper safety on the premises.

Q3) Is the milkman's employer vicariously liable, write your arguments for and against the defense.


Vicarious liability:

The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as parent and child, employer and employee, or owner of vehicle and driver), to exercise such care as a reasonably prudent person would use under similar circumstances.

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. It is also referred to as imputed negligence. Legal relationships that can lead to imputed negligence include the relationship between parent and child, husband and wife, owner of a vehicle and driver, and employer and employee. Ordinarily the independent negligence of one person is not imputable to another person.

In this case:

Milkman had been expressly told (by a clear notice) not to allow children to help him or ride on his float. Contrary to this, the milkman employed a young boy, and he was injured due to the negligent driving of the milkman. The court held that the employment of the boy, although prohibited, was within the scope of the milkman's employment having been performed for the purpose of the employer's business. Accordingly, they were found vicariously liable.

Q4) Write a note on different type of tortious liability.


The different types of tortuous liabilities are:

• Strict Liability

• Product liability

• Negligent Liability

Strict Liability

Strict liability is a legal doctrine that makes some persons responsible for damages their actions or products cause, regardless of any "fault" on their part.

Strict liability often applies when people engage in inherently hazardous activities, such as doing "blasting" in a city, or keeping wild circus animals. If the blasting damages you -- no matter how careful the blasting company was -- it is liable for the injury. Similarly if the animals escape and injure someone, the fact that the circus used the world's strongest cages and the highest standard of care imaginable will not let it get off the hook.

Strict liability also may apply in the case of certain manufactured products. In strict product liability, typically anyone who is engaged in the stream of commence of the product (from the manufacturer to the wholesaler to the retailer, or all of them) can be held responsible if the product was defective and someone was injured. There is no need to prove negligence but the injured party must prove that the product was defective.

Product Liability

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause.

Types of product liability

There are three major types of product liability claims:

• Manufacturing defect

• Design defect

• A failure to warn.

However, in most states, these are not legal claims in and of themselves, but are pleaded in terms of the theories mentioned above. For example, a plaintiff might plead negligent failure to warn or strict liability for defective design.

Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured. Failure-to-warn defects arise in products that carry inherent no obvious dangers which could be mitigated through adequate warnings to the user, and these dangers are present regardless of how well the product is manufactured and designed for its intended purpose.

Negligence Liability

Negligence is the failure to exercise the required amount of care to prevent injury to others. For example, if you cause an accident that injures someone or damages their vehicle because you were driving at an unsafe speed, then you could be sued for negligence.

In some cases, the law imposes absolute liability (strict liability) on specific parties without regard to fault, and, therefore, obviates the need to prove fault in court. For instance, manufacturers are held strictly liable for defective products that they manufacture.

Sometimes, the law designates other parties as being responsible, whether they are or not. Imputed negligence results in vicarious liability, where the principal is responsible for the acts of his agents. For example, employers have vicarious liability for the actions of their employees. If an employee injures someone in the course of employment, then it doesn't matter whether the employer could have done anything to prevent it—the employer will be held liable regardless. Other instances of imputed negligence is through the effect of the family purpose doctrine that holds parents responsible for the negligent acts of their children, or the dram shop law, which holds the seller of alcoholic beverages liable for drunken patrons. If a patron drives after drinking at a tavern, and subsequently kills or injures someone with his vehicle, then the tavern owner can be held liable.

Sometimes, the act itself determines negligence. Under the doctrine of res ipsa loquitur, (Latin term for "the thing speaks for itself"), there are some actions so obviously negligent that the law presumes negligence, such as when a surgeon operates on the wrong side of the body, and the defendant, in such cases, must prove that he wasn't negligent.

Insurance can be purchased to protect against lawsuits that arise from strict liability and from negligence. However, all insurance contracts exclude intentional torts by the insured, since the insured can easily prevent such torts, and because, in general, intentional torts by the insured are not insurable risks.

Requirements for Negligence

Most cases of negligence cannot be determined absolutely, for it depends on many factors. The main measure used to determine whether an act was negligent is to consider what a reasonably prudent person would do, given the age and knowledge of the tortfeasor, and other relevant factors.

Before a court will award damages, the presumed negligence must satisfy 4 requirements:

1) There must be a legal duty to perform or to use reasonable care.

2) There must have been a failure to perform that duty.

3) The plaintiff must have suffered an injury or a loss.

4) And the negligent act must have been the proximate cause of the injury. The proximate cause is a cause that directly caused the loss or suffering; if the proximate cause didn't happen, then the harm would not have happened.

All 4 elements of negligence must be present before a court will award damages.

Defenses against Negligence

There are various factors that can either prevent a plaintiff from collecting damages or that will reduce the amount awarded.

Contributory negligence is negligence that is caused by both plaintiff and defendant. If the plaintiff contributed to his injury, then, in some states, the plaintiff will be prevented from collecting any damages.

Comparative negligence allows the plaintiff to collect some damages, but it will be reduced by the amount by which the plaintiff contributed to his own injury. There are 3 major rules, which differ according to state law and according to the amount of contributory negligence, that determine the amount that the plaintiff can collect.

The pure rule reduces the plaintiff's damages by the amount that he contributed to his injury. Thus, if a plaintiff has been judged to be 30% at fault, then his reward will be reduced by 30%.

The 49 percent rule requires that the defendant be less than 50% responsible in order to collect any damages, and any damages awarded will be reduced by the plaintiff's contribution. Under this rule, only 1 party can collect where both parties are suing each other.

The 50 percent rule permits the plaintiff to collect damages only if his share of the negligence is not greater than 50%. In contrast to the 49 percent rule, both parties can collect 50% of their damages from each other if both are judged to be 50% at fault. However, if the degree of fault is anything but 50%, then only 1 party will be able to collect damages, just as under the 49 percent rule.

The last clear chance rule modifies comparative negligence by allowing the plaintiff to collect damages from the defendant, even if the plaintiff contributed to his injury, if the defendant had a last clear chance to prevent the injury. In other words, could the defendant have prevented the injury regardless of the plaintiff's negligence? If the answer is yes, then the plaintiff will still be able to collect regardless of comparative negligence.

Finally, there is the assumption of risk—one assumes risk by engaging in an activity that is inherently risky, and, therefore, should not be allowed to collect damages if an injury results by engaging in the activity. Thus, if one plays racquetball without wearing goggles, and her opponent hits the ball and injures her eye, she will be prevented from collecting damages from her opponent, because by playing racquetball without wearing goggles, she assumed the risk that she will suffer an eye injury or even lose an eye while playing.

We shall now discuss two cases of torts

Palsgraf v. Long Island Railroad Co

The case

A passenger carrying a package, while hurrying to catch and board a moving Long Island Rail Road train, appeared to two of the railroad's (Defendant's) employees to be falling. The employees were guards, one of whom was located on the car, the other of whom was located on the platform. The guard on the car attempted to pull the passenger into the car and the guard on the platform attempted to push him into the car from behind. The guards' efforts to aid the passenger caused the package the passenger was holding to fall on the rails. Unbeknownst to the guards, the package, which was approximately fifteen inches long and wrapped in newspaper, contained fireworks, and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform (although later accounts suggest that a panicking bystander may have upset the scale), which injured Mrs. Helen Palsgraf (Plaintiff). Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee. The trial court and the intermediate appeals court found for Palsgraf (Plaintiff) by verdict from a jury, Long Island Rail Road appealed the judgment.

Opinion of the Court

The Court of Appeals (the highest court in New York) reversed and dismissed Palsgraf's complaint, deciding that the relationship of the guard's action to Palsgraf's injury was too indirect to make him liable.

Cardozo, writing for three other judges, wrote that there was no way that the guard could have known that the package wrapped in newspaper was dangerous, and that pushing the passenger would thereby cause an explosion. The court wrote that "there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him." Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability.

The court also stated that whether the guard had acted negligently to the passenger he pushed was irrelevant for her claim, because the only negligence that a person can sue for is a wrongful act that violates their own rights. Palsgraf could not sue the guard for pushing the other passenger because that act did not violate a duty to her, as is required for liability under a negligence theory. It is not enough for a plaintiff to merely claim an injury. "If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended."

This concept of foresee ability in tort law tends to limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows. Otherwise, liability could be unlimited in scope, as causes never truly cease having effects far removed in time and space.

Martin v. Herzog

The Case

Martin (P) appealed the order of the Appellate Division that reversed a judgment entered after jury trial that found Herzog (D) negligent and P blameless.

Martin (P) was driving his buggy on the night of August 21, 1915. P was killed in a collision between his buggy and Herzog's (D) car. It was dark when the accident occurred. P was driving without lights and D did not keep to the right of the center of the highway. P alleged that D was driving on the wrong side of the road. D claimed that P was contributory negligent for driving without headlights as required under the law. In the body of the charge the trial judge said that the jury could consider the absence of light "in determining whether the plaintiff's intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration." D requested a ruling that the absence of a light on the plaintiff's vehicle was "prima facie evidence of contributory negligence." This request was refused, and the jury was again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. P then requested a charge that "the fact that the plaintiff's intestate was driving without a light is not negligence in itself," and to this the court acceded. The jury was instructed that they were at liberty to treat the omission of the lights either as innocent or as culpable. The jury gave the verdict to P. The Appellate Division reversed that verdict. P appealed to the Court of Appeals.


Does a jury have the power to relax the duty that one traveler on the highway owes under a statute to another on the same highway? Is negligent conduct actionable by itself unless there is a showing that such conduct was the cause of the injuries incurred?

The rule of the law

The unexcused violation of a statutory duty is negligence per se and a jury does not have the power to relax the duty that one traveler on the highway owes under a statute to another on the same highway. Negligent conduct is not actionable by itself unless there is a showing that such conduct was the cause of the injuries incurred.

Opinion of the court

Judge Benjamin N. Cardozo gave the following judgment:-

Does a jury have the power to relax the duty that one traveler on the highway owes under a statute to another on the same highway? No. Is negligent conduct actionable by itself unless there is a showing that such conduct was the cause of the injuries incurred? No. The unexcused omission of the statutory signals is more than some evidence of negligence. The unexcused violation of a statutory duty is negligence per se and a jury does not have the power to relax the duty that one traveler on the highway owes under a statute to another on the same highway. To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed. Some relaxation there has also been where the safeguard is prescribed by local ordinance, and not by statute. Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. Here we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom D at the time was one. The jurors were improperly instructed that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. "Proof of negligence in the air, so to speak, will not do" To impose liability there still must be a showing of cause, proximate cause and damages. The failure of P's husband to use his headlights in accordance with the law is negligent conduct. The jurors have no discretion to treat such negligence differently or to ignore it. But at the same time there must still be a showing of the other elements of proof related to negligence to hold D liable. We conclude that evidence of a collision occurring more than one hour after sundown between a car and an unseen buggy, proceeding without lights is evidence from which a causal connection may be inferred between the collision and the lack of signals. If no other evidence is offered to break the causal connection, then there is contributory negligence. The order of the Appellate division should be affirmed.


 HND/HNC Common Law Course book









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