(AN OUTLINE OF THE ISSUES IN A CASE BASED ON NEGLIGENCE ADAPTED FROM THE WRITINGS OF AN OBSCURE AUTHOR)
Although the specific interpretation of the principles that define negligence and the likelihood that a particular act or practice will give rise to civil liability vary from jurisdiction to jurisdiction and from case to case, across all jurisdictions and in all cases the essential legal issues that determine civil liability for negligence remain the same. To recover an award for damages, the plaintiff in any negligence case must prove all of the following: that the defendant had a duty to prevent or to avoid harm to the plaintiff; that the defendant failed to comply with the standard of conduct for that duty; that the plaintiff suffered damage or injury; and that the failure to comply with the standard of conduct was the actual and proximate cause of the damage for which the plaintiff seeks recovery.
DUTY
The prerequisite element of duty has been summarized by one legal critic as a “duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks.” In more fundamental terms, a legally recognized duty reflects the notion that liability does not always follow from failing to protect another from harm. A legally recognized duty arises when the defendant either created or is responsible for the risk of harm or the defendant is in the kind of relationship to the plaintiff that requires the defendant to protect the plaintiff from such risks. Thus, while driving a car, constructing a building, or, in the present context, providing health care, the actor has a duty to avoid creating “unreasonable risks” to those who are directly affected by his or her activities. Similarly, lifeguards, guardians of minors, merchants in some situations, and, again, providers of health services potentially have duties to take affirmative steps to protect certain categories of people once they have established relationships with them.
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STANDARD OF CONDUCT
If the law recognizes that the defendant has a duty to avoid or to prevent harm to the plaintiff, the focal legal issues in any negligence case then become, first, defining the applicable standard of conduct and, second, determining whether the defendant did, under the specific circumstances of the case, violate that standard of conduct. The former is primarily a question of law, requiring the court to interpret the common law of the jurisdiction (as amended by statute); the latter is principally a question of fact finding, requiring the jury (or the judge if there is no jury) to interpret the evidence as presented and to apply the legal principles explained by the judge to the factual circumstances before it.
In ordinary negligence cases, the legal definition of the standard of conduct involves a specification of the requirement that the defendant must prevent or avoid unreasonable risks of harm. Thus, a contractor must act as a “reasonable contractor” under the circumstances, a lifeguard as a “reasonable lifeguard.” This specification of reasonable conduct under the circumstances generally will take into consideration the training and skill of the defendant, the locality and gravity of the circumstances, and the nature of the relationship involved.
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CAUSATION AND DAMAGES
Even if the plaintiff in a malpractice case can show that the defendant had a duty to avoid a risk of harm or to protect the plaintiff from such a risk, and can show that the requisite standard of conduct was violated by the defendant’s actions or non-actions, the plaintiff in any negligence case also must show that the violation was both the actual and proximate cause of the harm for which damages are sought. The plaintiff is generally entitled to recover any direct loss resulting from medical expenses, loss of past or future income, compensation for disability, and, in most jurisdictions, compensation for pain and suffering. Under some circumstances, punitive damages also may be awarded. But all recovery is premised on proof that the defendant caused the damages the plaintiff seeks.
Actual causation is defined in most jurisdictions in terms of “but for” causation. As one legal commentator has summarized the common law, the judge should instruct the jury to find causation of damage where “it is more probably true than not that the plaintiff ’s injury would not have occurred ‘but for’ the defendant’s actions.”
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To complete the outline of the essential issues in negligence cases, even if the defendant is found to have violated the standard of conduct and to have been the actual and proximate cause of damage to the plaintiff, the defendant still may avoid liability if he or she can prove any one of several affirmative defenses. For example, the defendant may show that the statutory or common law time limit during which the plaintiff must bring suit has expired, or that the statutory or common law of the jurisdiction has immunized the defendant from liability. Historically, for example, charitable institutions were immune from negligence liability, although this doctrine has been abandoned in almost all American jurisdictions. The defendant also is allowed to prove in most circumstances that the plaintiff ’s conduct also was negligent. In some jurisdictions, this “contributory negligence” bars the plaintiff ’s recovery of damages altogether; in others, the jury is instructed to apportion the defendant’s liability based on the relative severity of the negligence of the parties.
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