Negligence

An injured plaintiff may bring an action against a defendant to recover for injuries caused by the defendant's negligence. Negligence is generally the failure to use the care that a reasonable and prudent person would use to avoid an injury. To maintain a negligence action, the plaintiff must prove that the defendant owed a legal duty to the plaintiff, that the defendant breached the duty, that the breach was both the actual and proximate, or legal, cause of the plaintiff's injury, and that the plaintiff suffered damages.

Duty

All persons are under a general duty to act as a reasonable person and to not create unreasonable risks of harm to others. Some duties are imposed on persons by statutes. In addition, some persons are under a special duty arising from their statuses in relation to others.

Common carriers

A common carrier, such as a railroad, has a duty to exercise a high degree of care toward its passengers.

Drivers

In most states, a driver owes only a duty of ordinary care to a rider. Some states also have guest statutes, which lessen the driver's duty to merely refraining from gross, wanton, or willful misconduct.

Land owners

The duty of an owner or occupier of land to a person who enters his property depends upon the status of the person who enters the property.

Trespassers

A trespasser enters an owner's land without permission or privilege. The owner owes no duty to a trespasser of whose presence he is unaware. However, if the owner knows of the trespasser's presence, he must exercise ordinary care to warn the trespasser of or to make safe known, artificial conditions that involve a serious risk of harm and that the trespasser is unlikely to discover. The owner owes no duty to warn of natural conditions or non-dangerous artificial conditions.

For a trespasser who is a child, the "attractive nuisance" doctrine may apply. The doctrine imposes on the owner a duty to exercise ordinary care, even though the child is a trespasser, to prevent reasonably foreseeable risks of harm arising from artificial conditions on the land. For example, a pile of wood that can be climbed on may be an attractive nuisance. In order for the doctrine to apply, the owner must know or should know that the dangerous condition exists and that children frequent the area and would be attracted to the condition.

Licensees

A licensee enters an owner's land with permission for his own purpose. The owner owes a duty to warn the licensee of known, dangerous conditions that involve an unreasonable risk of harm and that the licensee is unlikely to discover. However, the owner is not required to inspect for unknown defects or repair known defects. A social guest is considered a licensee.

Invitees

An invitee enters an owner's land based on an invitation from the owner. The invitation may be express or implied. The owner owes a duty to use ordinary care in keeping the property safe by warning of nonobvious, dangerous conditions and by inspecting the premises to discover unknown dangers.

Lessor/Landlord

When a lessor leases the entire premises to a lessee, he is relieved of the duty to maintain it to avoid injury to others. He is, however, still under a duty to maintain portions that all lessees use in common or that others use in visiting lessees, such as hallways and stairs. The lessor also has a duty to warn the lessee of known dangers that the lessee is unlikely to discover. The lessor may contract in the lease to maintain the premises. Even if the lessor does not so contract, he is liable for any negligence in making voluntary repairs.

Breach

A plaintiff may prove that a defendant breached his duty by showing what happened and how the defendant's actions fell below the standard of care that he was required to exercise. The plaintiff may also establish that the defendant violated a statute that imposed a duty upon him.

The doctrine of res ipsa loquitur may apply to enable the plaintiff to prove a breach. Such doctrine literally means, "the thing speaks for itself." In order for the plaintiff to rely on the doctrine, he must establish that his injury would not normally occur in the absence of someone's negligence, that whatever caused the injury was in the defendant's sole control, and that the plaintiff was free from fault. For example, if a driver's vehicle leaves the road and crashes in a one-car accident, there is an inference of negligence under res ipsa loquitur because cars generally do not leave the road in such circumstances in the absence of the driver's negligence.

Causation: Actual and Proximate

An act is the actual cause of an injury if the injury would not have occurred but for the act. When several acts join to cause an injury, and each individual act could have caused the injury, an act is the actual cause if it was a substantial cause of the injury.

A defendant's conduct must be not only the actual cause, but also the proximate cause of a plaintiff's injury. The proximate cause is considered the legal cause of the injury. It is the primary and responsible act that plays a substantial part in causing the injury. It is normally the last cause that contributes to the injury, but it need not be. Thus, the doctrine of proximate cause may limit a defendant's liability if his act did not legally cause the injury.

Damages: Personal, Property and Punitive

Damages will not be presumed and must be proved by a plaintiff.

An injured plaintiff may recover past, present, and prospective damages to compensate him for his injuries. Such damages include costs for past and future medical bills, lost income since the injury, an award for diminished earning capacity for the future, and pain and suffering.

A plaintiff who suffers damage to property may recover the reasonable cost of repair. If the property is beyond repair, the plaintiff may recover the fair market value of the property at the time of the injury.

If a defendant's conduct was wanton, willful, reckless, or malicious, a plaintiff may recover punitive damages, which are intended to punish the defendant.

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