Archive for the ‘Negligence’ Category

Negligent Entrustment

Posted on: June 2nd, 2016 by James Haug

If a person is injured by a drunk driver, who is liable? Obviously, the person driving drunk could be sued if he negligently caused an accident that resulted in Plaintiff’s injuries. However, the person or establishment that gave the driver the alcohol in the first place could also be held responsible. If the drunk driver was noticeably intoxicated and the bar continued to sell him alcohol, the injured person may have a claim. The rule is that one who sells intoxicating beverages for on-premises consumption is under a duty of care to third persons not to sell to noticeably intoxicated persons.

Further, if the car that the driver was operating is owned by another, the owner could be held liable for negligent entrustment. This is true even if the the driver is not drunk at the time he in entrusted with the car. The owner can still be liable if the owner knows that the driver had a history of drunk driving. Similarly, one who provides a car to a minor who is unfit to drive may also be liable if the minor causes an accident.

Most cases of negligent entrustment involve giving a dangerous thing to a person whom the entruster knows or should know would be apt to use it in a dangerous way – things like guns, or knives, or cars, or cigarette lighters. In negligent entrustment cases the owner provides a car to an already intoxicated person, with the resulting dangerous combination of driving and alcohol. In the alcohol dispenser cases, the order is reversed:  the owner of the alcohol sells it to someone who already has a car, but the resulting dangerous combination is the same.

In order to prove a claim for negligent entrustment, the Plaintiff must prove 1) the driver was negligent in operating the vehicle, 2) the defendant was the owner of the vehicle, 3) the defendant knew or should have known the driver was incompetent or unfit to drive the vehicle, 4) the defendant permitted the driver to use the vehicle and 5) the driver’s incompetence was a substantial factor in causing harm to the plaintiff.

Defenses to Negligence Claims in Georgia

Posted on: April 19th, 2016 by James Haug

Defenses to Negligence Claims in Georgia

Suppose a driver turns left at a red light in front of a second driver’s car, causing a car accident. The first driver is clearly negligent. However, let’s assume the accident could have been avoided entirely had the second driver not been speeding. Courts have three different ways of apportioning the blame – and thus the liability – in cases where both parties are negligent: Contributory Negligence, Comparative Negligence and Assumption of the Risk.

First, the doctrine of Contributory Negligence may be used to completely bar a plaintiff who contributes to the accident. In the car wreck example above, if the second driver was indeed speeding and contributed to the accident, she would not be able to recover any damages in a jurisdiction that adopts the rule of contributory negligence.

Comparative Negligence is a defense that may be used to reduce the recovery of a Plaintiff that contributes to the accident. Her recovery will be reduced by the percentage of her negligence. Most jurisdictions have adopted this approach, including Georgia.

Specifically, Georgia follows a modified comparative negligence approach: Plaintiff will only recover if she is less than 50 percent at fault. In other words, if she is 40 percent at fault, he damages will be reduced by 40 percent, leaving her with 60 percent of her damages. Let’s say that Plaintiff suffers $100,000 in damages but is found to be 40 percent at fault. She would only be able to recover $60,000 because her recovery would be reduced by 40 percent, or $40,000.

Our neighbors, Alabama and North Carolina, follow a pure comparative negligence system, where damages are apportioned to each party regardless of each party’s percentage of fault. In other words, if Plaintiff is found to be 80 percent at fault, she could still recover 20 percent of her damages from Defendant. In Georgia, because she is more at fault than the defendant, she would be barred from recovery.

Another defense to negligence is assumption of the risk. A Plaintiff that voluntarily undertakes the risk that results in her injury is also barred from recovery. In order to prove assumption of the risk, Plaintiff must voluntarily choose to expose herself to a known risk. In other words, she knows and appreciates the risk, but still chooses to expose herself to the danger.

Let’s say you sign a waiver form before going skydiving. That would be an express assumption of the risk. You know the danger of skydiving, but voluntarily choose to expose yourself to it. Or, let’s say you get a recall notice informing you that the brakes on your car are defective and you notice that they are slipping, but you choose to drive your car anyway without getting the braes repaired. That is an assumption of the risk as well.

Assumption of the risk can be implied by the factual situation or expressly, when the plaintiff explicitly agrees to accept the risk involved. Many jurisdictions absorb implied assumption of the risk into comparative negligence rather than treating it as a completely separate defense. Georgia has both a comparative negligence statute and an assumption of the risk statute.

Negligent Infliction of Emotional Distress

Posted on: April 2nd, 2016 by James Haug

If a person is injured by someone else’s intentional conduct, she may be able to recover in an action for intentional tort. For example, if someone intentionally hits that person, she may have a battery claim. She could also have a battery claim if the Defendant intentionally touched something closely connected to her. For example, perhaps defendant intentionally pulled Plaintiff’s backpack off of her as she was walking by. Plaintiff could recover for any injury caused as well as her pain and suffering. If there was no personal injury, she may have a separate claim for Intentional Infliction of Emotional Distress.

However, what happens if someone suffers emotional distress as a result of someone else’s unintentional conduct? Filing a claim for Negligent Infliction of Emotional Distress, or “NIED.” may be the key. In some states, in order to recover for NIED, Plaintiff has to prove that she suffered a physical impact before recovering for emotional distress CAUSED BY THE NEGLIGENCE of another, the emotional distress suffered must flow from PHYSICAL INJURIES the plaintiff sustained in an impact. Thus, the impact rule precludes the recovery of damages for NIED unless the emotional distress arises directly from the physical injuries sustained by the plaintiff in the impact.  The crux of a claim for negligent infliction of emotional distress is UNINTENTIONAL injury.

However, other states follow a modified rule, where recovery for NIED still requires direct physical impact, but that impact does not need to cause physical injury to the plaintiff, and the emotional trauma suffered by the plaintiff does not need to result from a physical injury caused by the impact. The direct physical impact is sufficient to satisfy the modified impact rule where the facts are such that the alleged mental anguish is not likely speculative, exaggerated, fictitious, or unforeseeable even if the physical impact is slight.

So, if a Defendant NEGLIGENTLY comes into contact with something closely connected to the plaintiff and it causes emotional trauma that was not speculative, exaggerated, fictitious, or unforeseeable even if the physical impact is slight, the Plaintiff will recover for NIED in a jurisdiction that follows the modified impact rule. For example, if Defendant negligently fired a bullet that grazes the plaintiff’s backpack, and plaintiff  suffers emotional trauma as a result, Plaintiff could claim NIED in a jurisdiction that follows the modified impact rule.

Negligence Per Se Atlanta Georgia

Posted on: March 12th, 2016 by James Haug

Negligence Per Se Atlanta Georgia

If an individual is injured because of the actions of another, she may be able to recover her damages if she can prove that the other person was negligent. As mentioned in previous posts, to prove that another person has acted negligently, you generally must demonstrate that the person acted unreasonably under the circumstances, which can sometimes be hard to do.

Under Georgia state law, one way you can prove unreasonable conduct is to show that the Defendant violated a statute. For example, let’s assume that the Defendant was speeding or ran a red light. As a result, the Defendant caused an auto accident, and another driver on the road was injured. We all know that both speeding and running a red light are against the law in every state in the United States. However, that does not automatically mean that the Defendant is liable for the Plaintiff’s injuries under the doctrine of negligence per se. Instead, you have three requirements to prove to invoke the doctrine:

  1. The injured Plaintiff must be within the class of persons that the law was intended to protect. In the case of the speeding car, the law against speeding was designed to protect drivers. Therefore, if another driver is hit by a speeding car, she is within the class of people the statute is designed to protect.
  2. Again, in the case of the speeding car, the law was intended to protect against people suffering an injury as a result of an automobile accident. Because the Plaintiff was injured in a car accident, she suffered the type of harm the statute was meant to protect against.
  3. Finally, you have to show that the Defendant’s violation of the statute was not excused. In other words, if the Defendant has an excuse for breaking the law, the doctrine of negligence per se will not apply. In the case of the speeding car, if the Defendant was speeding because he was rushing to the hospital to save a dying passenger in the vehicle, his conduct may be excused, and negligence per se will not apply. However, if there was no excuse for his speeding, the Plaintiff may be able to prove negligence per se and avail herself of the doctrine to prove that the Defendant owed her a duty of care to drive at the speed limit, and he breached that duty of care by recklessly driving over the speed limit.

Here’s the twist: Just because a Plaintiff can prove negligence per se does not mean that the Plaintiff automatically wins her negligence case. Rather, she must also still prove causation and damages. For example, if the accident was caused because the Plaintiff swerved to avoid a hazard in the road and not because the Defendant was speeding, then the Defendant will not be liable for negligence because the Plaintiff cannot prove both actual and proximate cause.

Proving Negligence Actions in Georgia: Unreasonable Conduct

Posted on: January 12th, 2016 by James Haug

Proving Negligence Actions in Georgia: Unreasonable Conduct

When a person has been injured in an accident, she may be able to recover damages for her injuries if she can prove that the accident was caused by the negligence of another. In other words, if someone acted unreasonably and caused injury as a result, that person may be liable.

Proving negligence isn’t always easy. A plaintiff must show that 1) Defendant owed her a duty of care, 2) Defendant breached that duty of care, 3) the Defendant’s breach caused the plaintiff to be injured, and 4) Plaintiff suffered damages as a result.

In general, we all owe a duty of reasonable care to those around us. In other words, we should drive safely, look where we are going, and just exercise general common sense so that we don’t cause anyone else to be hurt by our actions. It is when we act unreasonably that we can get into trouble! If a plaintiff can prove unreasonable conduct, she can prove that Defendant breached his duty of reasonable care, which is often the hardest thing to prove in a negligence case. After all, reasonable minds may differ as to what is considered reasonable.

Luckily, courts have a method to help determine when Defendant’s conduct amounts to unreasonable conduct. It is called the “Learned Hand Test.” It is called this because it was first used by a judge named Learned Hand. It basically says that if the probability and gravity of harm outweigh the burden of protecting against the harm, the Defendant has acted unreasonably in failing to protect against the harm.

Think of it this way: Defendant has a swimming pool in her back yard. There is no fence around the pool or her yard and her neighborhood has lots of children in it. One of the neighborhood kids falls in the pool and drowns. The question becomes whether Defendant has breached her duty of care owed to that child by not installing a fence. When we apply the learned Hand Test, we first ask about the probability of harm. In this case, the probability of harm is high. There are lots of children in the neighborhood. Children are attracted to swimming pools. The probability of a child falling in and getting injured is very high.

Next, we look at the gravity of harm. If a child falls in a pool, he could drown. Therefore, the gravity of harm is great as the result could be death.

Finally, we look at the burden to protect against the harm and measure that against the probability and gravity of the harm. The cost of putting up a fence is very low compared to the risk of a child falling into the pool and drowning. Therefore, Defendant acted unreasonably by not putting up a fence and breached her duty of care to that child.

Of course, Plaintiff will also have to prove causation, which leaves us a topic for further discussion!