You may have heard the concept of negligence bandied about by insurance claim investigators, or possibly heard the word from a handsome actor playing the part of a legal-eagle on a weekly television drama. What about those ultra serious, 1-800- SUEYOU type TV commercials; plaintiffs dancing and singing and waving settlement checks in the air. “Is someone liable for your injuries?” the attorney asks. “Did their negligence cause you pain?”
Those commercials leave the idea of negligence lingering in the air, reminding you to reconsider your rear-end auto accident or your slip and fall and that on-again, off-again twinge of pain in your left shoulder that might just be worth a few dollars.
It’s true. Injuries can lead to dollar settlements, but it’s not as simple as those commercials make it seem. You have to prove negligence.
Negligence Has A Formula-
A person or entity can be legally liable for your injuries if you can prove their negligence in causing them. Negligence, like most legal concepts, has a formula for proper analysis. This formula varies due to jurisdiction, with defenses and interpretations that change the way local legal brains interpret negligence; but the basic elements for measurement are generic:
If Bobby Joe Got Hurt-
To measure these elements of negligence, let’s look at Bobby Joe who was pushing his shopping cart down the produce aisle of his local grocer, contemplating his dinner menu and reaching for an organic kumquat when he fell on his bottom. He didn’t notice lettuce leaves strewn across the floor, and the wet spot beneath them, and when he stepped toward the kumquat bin, one foot went this way, one when that way; and in a flash he was on the floor and in pain.
Legal concepts get complicated, you know that; and so it shouldn’t surprise you that the duty owed to Bobby Joe is not necessarily an easy thing to figure out. It’s based on his reason for being in the store, which gives him a legal status in one of the following categories.
–Invitee– Mr. Storeowner didn’t personally invite Bobby Joe to come in and spend his hard earned paycheck; but he saw the ad for buy-one-get-one-free organic kumquats, which counts as an invitation, at least to an organic kumquat lover. Bobby Joe’s presence in the store could benefit Mr. Storeowner’s bottom line and he welcomes him. He is, therefore, an invitee.
As an invitee, Mr. Storeowner owes a duty to Bobby Joe of a high degree of care, such as care to make sure there are no wet lettuce leaves on the floor where he might walk.
–Licensee-Let’s say Mr. Shopkeeper’s store was at the entry way of an open air market. The walkway in front of his kumquats is his space, but it’s also used as a common walkway by everyone to access all the other vendors. Bobby Joe and everyone eles uses it; if they didn’t, Mr. Storeowner wouldn’t have much business and neither would anyone else. Even if the people who use this walkway are not Mr. Shopkeeper’s customers, they have his implied permission to use it and are licensees. The duty owed to a licensee is a reasonable degree of care.
–Trespasser– If Bobby Joe was a thief running through the produce department after stealing an organic kumquat, he would be a trespasser, neither on the premises by express nor implied invitation nor for the benefit of Mr. Shopowner or anyone else. As a thief on the premises solely to commit a crime, Mr. Storeowner would owe him only a duty not to set traps that could cause him intentional harm.
Breaching a duty is when a person fails to keep a commitment or responsibility.
Mr. Storeowner has a duty to conduct ongoing monitoring and inspections of his store areas. He has a duty to respond to any reports of conditions that need attention, such as lettuce leaves and water on the floor, as well as a duty to eliminate known problems on a timely basis and otherwise maintain and clean his store. Failure to do these things is a breach of his duty to his invitees and licensees.
If he sets a bear trap to catch thieves in the middle of the night, that would be a breach of his duty to trespassers.
Proximate cause is the initiating factor that begins an unbroken chain of events to cause an injury or other damage.
Take Bobby Joe who now has a pain in his neck. He says it’s from falling in Mr. Storeowner’s produce department on Monday evening but he didn’t go to the ER until Friday. By then he’d fallen off a ladder at home, felt a slight muscle twitch while lifting a crate at work and got hit in the rear-end by a car in traffic on the way home. (Bobby Joe is known for his bad luck.)
Because of so many other intervening incidents before he sought medical care, Bobby Joe has little chance of proving that the proximate cause of his injuries was his fall in Mr. Storeowner’s produce department. He will have a hard time proving negligence.
The doctor examined Bobby Joe in the ER and remembers him from previous accidents as a hypochondriac. His injuries are all in his head, he decides; and that’s exactly what he writes on his medical chart. When Bobby Joe’s attorney requested a medical report to verify Bobby Joe’s injuries were related to his fall in Mr. Storeowner’s produce department, the doctor refused to do so.
So even if Bobby Joe could prove Duty Owed, Duty Breached and Proximate Cause to the fall in Mr. Storeowner’s produce aisle, he still probably won’t collect a dime because the doctor says he wasn’t injured.
Bob had no damages.
Even if Negligence is proven, Mr. Storeowner still has defenses to liability that he might assert should Bobby Joe make a claim against him. Assumption of Risk, No Liability, Open and Obvious are all defenses to liability; but these are concepts for another article.