Tort Of Negligence: Definition, Elements, And Examples

Definition of Tort

Question:

Extravaganza Inc own and run a large performance arena used for a variety of activities ranging from rock concerts to antiques fairs. Events at this venue attract many thousands of visitors, and security can be a serious issue. Ordinarily, visitors to an event must pass through a gateway linked to a computerised analysis system, which would indicate the presence of potential weapons.
The computer is now rather old and has been poorly maintained. Roughly once a month the computer system fails. Because the failure occurs without warning it would be difficult to arrange for extra security personnel to search visitors by ‘frisking’ them. Hand-held detectors could be provided to existing security workers, but these would be expensive and Events Inc consider the cost would not be justified given they would not be needed for the most of the time.
Petra is among those seriously injured when, on one of the days the system has failed, Jason, another concert-goer, after drinking heavily at the bar, loses his temper and fires indiscriminately at the people around him.
Assuming Extravaganza Inc owe Petra a duty of care, consider issues of standard of care and breach of duty raised by these facts.

• A large performance arena is owned and run by Extravaganza Inc. for various activities like rock concerts and antique fairs.
• A large number of visitors visit this venue for several events.
• The computer of security analysis system is poorly maintained.
• The computer fails, usually once a month without any warning.
• Due to such failure once, a visitor named Jason after having drunk heavily, opens fire at the crowd and consequently a visitor Petra gets seriously injured.

Till today, there is no explicit definition of the tort given anywhere, in any legislation or statute. It has evolved as a result of common law or case law decisions. In general, the Tort implies that conduct which is neither legal nor very direct, it may be either illegal, distorted or dubious. Simply put, it is a civil wrong, regarding which an innocent party or in other words, a victim has the right to claim damages in the form of money. But, it does not fall under the category of a breach of contract or trust. Torts can be of various types like: negligence, nuisance, defamation, trespass etc.

Tort of negligence means a judicial action taken by a person who has been harmed due to an action of a person, who owed a duty of care towards him.However, that person becomes liable only when he has a duty of taking care and the plaintiff has been harmed on account of the breach of duty by the other person/defendant.

For negligence, the following ingredients must exist:

• A duty of care towards the claimant was owed by the defendant.
• There was a breach of such duty by the defendant.
• The breach of such duty caused damage to the claimant.

1. Duty Of Care:

Duty of care implies a duty, which is required by law and not by any moral or social principles. For the purpose of succeeding in an action of tort, it is essential to prove that there was some duty of care legally, which was owed by the defendant and regarding which breach was made. Although an exact definition of this duty has not been defined. The legal test for making a defendant liable for existence of duty of care varies according to the type of loss. This is a special area within the tort of negligence defined not by the general circumstances, but the kind of damage suffered by the claimant. Negligence on the part of the defendant may may be of several types of damage, like financial, property, personal, psychiatric in individual form or in combination.

Tort of Negligence

Duty should have been towards the plaintiff:

If it is only carelessness of the defendant rather than a special duty towards plaintiff, it does not amount to negligence. It is not enough that a duty of care was owed by the defendant towards other people. It should have existed towards the plaintiff in particular. Moreover, a plaintiff has the right to sue the defendant for negligence, only if he himself got injured on account of failure of the defendant fulfill his duty.

2. Breach of duty:

Breach of duty means if the defendant did not take a due care, where it was required according to the circumstances. The standard of care is calculated from the point of viewpoint of a reasonable or an ordinarily wise man. If it is found that the defendant acted like a reasonably prudent man, then no negligence is committed.

• Amount of care required:

The law does not provide that the greatest care should have been taken in a particular situation, the only requirement is an amount/degree of care, which can be expected according to a reasonable man under similar circumstances. However, a few measures of risks are allowed by for facilitating the going on of some activities in the public interest. For instance, a certain speed may not be considered as negligent for a fire brigade vehicle, but the same speed may be regarded as an act of negligence for another vehicle.

• The degree of the risk involved:

The degree of care required again depends on each situation. A careful act in one specific situation may be taken as a negligent act in another. The same amount of care is not demanded by law in all situations. It is the kind of risk involved or the probability of the amount of damage foreseen that determines the precautions which the defendant should have taken.

• Logical foreseeability is quite different from the existence of remote possibility:

If an injury was foreseeable, it may not necessarily amount to negligence. For constituting negligence, it is equally important that the probability of the happening/occurrence of an injury was foreseeable. The reason for this is that the main purpose of this law is to provide protection against probabilities as compared to merely possibilities.

• Proximity of harm and the negligence: For establishing the tort of negligence, it is necessary that the damage or injury caused should not be a remote consequence of the negligence of the defendant. In other words, there must exist a proximity between the negligence and the harm. Or, simply put, there should be a direct cause and effect relationship between the breach of duty of care and the harm caused.

3. Damages:

In case no harm or damage has been caused to the plaintiff, then no action can be brought for tort of negligence. The following similar cases can be referred with regard to the given case.

In the given case, a large performance arena has been owned and run by Extravaganza Inc for several activities like antique fares and rock concerts. Thousands of visitors visit this venue and security is undoubtedly one of the most important concerns. In spite of having a computerized analysis system for the detection of the presence of the weapons, it is poorly maintained by Extravaganza. It is known to the company that their computer system fails once every month without warning due to which it becomes impossible to check the visitors suddenly. Handheld detectors are the alternative available, but Extravaganza finding it expensive doesn’t want to spend on it, for it being required only when their original security system fails. On one such day when their security system failed, a person called Jason enters the concert with a weapon and after heavily drunk opens fire at the crowd and Peter for whom the Extravaganza owes a duty of care, gets seriously injured.

Elements of Negligence

Now, applying the above stated law to the case, it is to be seen if the elements of the tort of negligence are fulfilled:

1. Duty of care:

The first element of the tort of negligence, which is a duty of care towards the plaintiff is already fulfilled, as it is stated in the case itself that the Extravaganza owed a duty of care towards Petra.

2. Breach of duty:

If the extravaganza owed a duty of care towards Petra, but still did not arrange for suitable precautionary measures for safety, then definitely it amounts to a breach of duty of care by Extravaganza towards the plaintiff. Reference can be made to the following case law:

Paris v Stepney Borough Council [1951] 1 All ER 42, In this case, the plaintiff was having sight in one eye only. The defendant, employer of plaintiff, completely aware of this fact provided only the eyes protection glares for welding work to the plaintiff due to which he lost sight in the other eye. It was held that the defendant definitely owed duty of care towards the plaintiff and was liable for breach of duty and hence negligence.

3. Degree of standard of care required:

The standard of care in taking precautions in terms of safety, was merely what any reasonable man would take while organizing a concert with thousands of visitors, just like the similar case:

In a case, Nettleship v Weston [1971] 3 All ER 581, the defendant, during her lessons of driving from plaintiff makes an accident and injures the plaintiff. It was held by the House of Lords that benefit of doubt of lower standard of care of a trainer could not be given. The same standard of care is required from an unskilled and learner driver, as from that of a trained driver. Moreover, the plaintiff was also held to be partially responsible as having half of the control of the car, so he was held to have contributory negligence along with the defendant.

4. Amount of risk involved:

The defendant did not take due precautions for the safety standards in spite of their awareness about their system failure. Moreover, the degree of risk involved was high as thousands of visitors used to visit that place and anybody carrying weapon may result in endangering the lives of those people. A similar case on the standard of care required as per the risk involved can be referred:

Miller v Jackson, in this case, in spite of having erected a five meter wall by the defendant, his house had been damaged several times in the past due to being hit by cricket ball of the defendant’s cricket club. Thus, the House of Lords held that the amount of risk involved was high due to an old problem and so the defendant was held to have made a breach of duty for having not taken extra steps to prevent it.

5. Foreseeability:

It was easily and clearly foreseeable by the Extravaganza that the failure of their security system analysis may result in high danger anytime, but sill they did not arrange for any alternate methods of security, which any reasonable prudent man would do. The following case can be referred for the probable foreseeability:

Duty of Care

In case, Haley v London Electricity Board [1965] Ac 778, the workmen of the defendant left a hammer on the pavement on the road after work as a result of which, blind plaintiff got injured by stepping on it. The House of Lords held that it was foreseeable that blind pedestrians could pass that route and defendant was held liable for negligence and for not having taken proper precautions.

6. Proximity:

In the given case, there was a proximity of relationship between the failure of the safety system of the Extravaganza and the entry of the James with a weapon in the concert. James entry and his open firing at people and hence the serious injury of Petra were all direct consequences of the negligence of the Extravaganza about the safety measures regarding the concert. The following case law can be referred to this point:

Armsden v Kent Police, in this case, the driver of a police car was driving at a very high speed while speeding to an incident and did not siren on a certain junction as a result caused an accident. In this accident an individual got killed. It was held that the over speed and not giving siren were in proximity with the killing of the victim. Hence, the police driver was held for negligence.

7. Damage:

In the given case, undoubtedly damage has been caused to the Petra in the form of injuries, so he is liable to sue for tort of negligence. In a similar case as below:

Roberts v Ramsbottom [1980] 1 All ER 7, the defendant in this case met with an accident due to a minor stroke on account of lesser control over the car. After that again hit another. The House of Lords held that if he was completely out of his control, he would have escaped liability. If he was in senses, he was liable for his negligence and especially he could know about his unfitness from the accidents of the past.

Conclusion

Based on the above arguments and the referred case laws, it can be concluded that the carelessness of the Extravaganza made a breach of duty towards Petra and fulfilled all the essential elements of the tort of negligence and hence would be liable for the tort of negligence.

Bitsoflaw.org, 'Bits Of Law | Tort | Negligence | Breach Of Duty: Standard Of Care' (2013)

Getzler J, 'Richard Epstein, Strict Liability, And The History Of Torts' (2010) 3 Journal of Tort Law

MATTHEWS M, 'Negligence And Breach Of Statutory Duty' (1984) 4 Oxford J Legal Studies

Miola J, 'Negligence And The Legal Standard Of Care: What Is ‘Reasonable’ Conduct?' (2009) 18 Br J Nursing

Mullender R, 'The Reasonable Person, The Pursuit Of Justice, And Negligence Law' (2005) 68 Modern Law Review

Schwartz W, 'Negligence Pleading: Alleging Defendant's Breach Of Duty' (1947) 35 California Law Review

Steele J, ''Breach Of Duty Causing Harm?' Recent Encounters Between Negligence And Risk' (2007) 60 Current Legal Problems

'Tort: Negligence: Contributory Negligence: Injury To Bicyclist By Street Car' (1903) 2 Michigan Law Review

'Tort: Negligence: Contributory Negligence: Injury To Bicyclist By Street Car' (1903) 2 Michigan Law Review

'Tort: Negligence: Proximate Cause' (1904) 3 Michigan Law Review

'Torts: Negligence: Proximate Cause: Foresight Rule' (1928) 26 Michigan Law Review

'UNITED KINGDOM: NEGLIGENCE: BREACH OF DUTY, REASONABLENESS' (1997) 5 Medical Law Review

Weir J, 'Negligence—Duty Of Care—Foreseeability' (1964) 22 The Cambridge Law Journal

 Tort: Negligence: Contributory Negligence: Injury To Bicyclist By Street Car' (1903) 2 Michigan Law Review.

 J. A. Weir, 'Negligence—Duty Of Care—Foreseeability' (1964) 22 The Cambridge Law Journal.

 J. Steele, ''Breach Of Duty Causing Harm?' Recent Encounters Between Negligence And Risk' (2007) 60 Current Legal Problems.

 M. H. MATTHEWS, 'Negligence And Breach Of Statutory Duty' (1984) 4 Oxford J Legal Studies.

 'Torts: Negligence: Proximate Cause: Foresight Rule' (1928) 26 Michigan Law Review.

 'Tort: Negligence: Proximate Cause' (1904) 3 Michigan Law Review.

 Walter G. Schwartz, 'Negligence Pleading: Alleging Defendant's Breach Of Duty' (1947) 35 California Law Review.

 Bitsoflaw.org, 'Bits Of Law | Tort | Negligence | Breach Of Duty: Standard Of Care' (2013)

 J. Steele, ''Breach Of Duty Causing Harm?' Recent Encounters Between Negligence And Risk' (2007) 60 Current Legal Problems.

 Bitsoflaw.org, 'Bits Of Law | Tort | Negligence | Breach Of Duty: Standard Of Care' (2013)

 'Torts: Negligence: Proximate Cause: Foresight Rule' (1928) 26 Michigan Law Review.