Personal Injury – (248) 588-3333 – negligence
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What is Negligence?
Negligence is the most common legal standard for determining liability for personal injuries. In short, it is defined as a specific form of careless behavior that causes injury to another person.
What is the specific standard for negligence?
In order to win a negligence lawsuit, the plaintiff must prove each of the following:
- That the defendant had a “duty of care” towards the plaintiff during the incident. That duty of care obligates the defendant to behave as a reasonable person under similar circumstances would act (or some other applicable standard).
- That the defendant breached that duty of care
- That the breach of duty caused the alleged harm to the plaintiff
- That the plaintiff suffered actual harm or injury.
How do you determine when someone has a duty of care towards another?
A defendant owes a duty of care to all foreseeable plaintiffs. In other words you owe a duty of care to anyone that you would reasonably perceive to be at risk as a result of your actions.
What are some examples of people with a duty of care?
He are some examples of situations where someone owes or is owed a duty of care:
- If you cause an accident where rescuers are involved, then your duty of care extends to those rescuers (i.e. they are foreseeable plaintiffs). This also includes situations where you yourself are in need of rescue. Firefighters and police officers are generally barred from filing a lawsuit against a rescue under the “firefighters rule”.
- If a particular economic transaction was intended or foreseen to benefit a third party (such as a will or a trust), then that third party is owed a duty of care by the participants in that transaction.
Duty of care typically exists where there is a special relationship (such as parent and child). It also exists between business owners and their patrons/customers. It also exists, to varying degrees, between property owners and guests on their property.
In certain circumstances you can owe a duty of care to someone you rescue, especially if you were the one to put them in danger in the first place.
How does the court define “reasonable person”?
The “reasonable person” is a fictional person whose behavior is measured against the behavior of a defendant in a lawsuit. The reasonable person does not have a race, an age, a gender, or any mental handicaps. These factors are not considered at all when determining the reasonableness of a person’s actions. However, it will take into account physical disabilities such as blindness or paralysis.
Children are subjected to a slightly modified standard of reasonable care that takes into account age and relative life experience. The exception to this is when the child engages in an adult activity, in which case the same standard as adults applies.
Is “the reasonable person” the only standard used to determine the duty of care?
No, it is not. In addition to the lenient standard we use for children, we also expect individuals with superior or exceptional knowledge and experience to exercise that advantage and thus they are held to a higher standard. Examples of this include:
- Certain professionals: An occupation with certain skills, such as doctors, would be held to a higher standard in situations involving medical care. This heightened duty comes with an obligation for doctors to disclose the risks of any treatment and to obtain a patient’s informed consent.
- Common carriers and innkeepers: entities who provide a very public service to a large number of people have a very high standard of care towards their guests. They are liable for even slight negligence.
- Bailment situations: A bailment relationship occurs when you entrust your personal property to the temporary possession of another person. An example of this would be leaving your car at an auto repair shop. The auto repair shop becomes the “bailee” while the owner is the “bailor”. The standard of care expected of a bailee depends on the nature of the bailment. There are generally three kinds of bailment relationships.
- Bailments that are for the sole benefit of the bailee, such as letting someone borrow something from you. This imposes a very high standard of care.
- Bailments for the sole benefit of the bailor (like free valet services) impose a rather small duty of care where the bailee is only liable for gross negligence.
- Bailments for mutual benefit (standard auto repair shop) impose a standard duty of care (reasonable person).
- Public safety laws: If there is a law in place designed to protect members of the public from certain dangers (such as traffic laws), then everyone in that jurisdiction owes a duty of care to everyone that the particular law was meant to protect.
- Home owners and their guests: When you have someone on your property, that typically creates a duty of care. What that duty consists of varies greatly depending on the circumstance. The law regarding liability for guests is actually quite complex. As such it has its own dedicated chapter in this guide.
- Attorneys: The standard of care for attorneys is their adherence to the standards of professional conduct.
How does the court determine that a duty of care has been breached?
Usually this question is left to the judge or jury’s discretion. They will have to decide if the defendant acted as prudently as a reasonable person under the same circumstances would have. There are some common examples and principals that these decision makers will use determine if breach has occurred.
- Custom: If there are certain customs in society or a particular industry, than a court might consider that any actions complying with that custom do not breach the standard of care. However, a judge or jury can still decide that the custom is unreasonable and negligent.
- Violation of a public safety statute: We all owe a duty of care in the context of public safety laws. If there is a public safety law (like a traffic law), then all people driving cars owe a duty of care to anyone that law is meant to protect. A violation of such a law that results in injury is a pretty clear cut “breach” of the duty to care. This principle is known among lawyers as “negligence per se”.
- Res Ipsa Loquitur: This is a legal term of art used to describe situations where it is difficult to determine precisely what negligent action or person may have caused the accident. The factors used to prove a breach of duty in such a situation are:
- An accident of the sort that doesn’t usually happen unless someone has been negligent.
- If there was any negligence, it was likely on the part of the defendant. This is usually shown by the fact that whatever object or element that caused the injury was in the exclusive possession or control of the defendant.
Making a case for Res Ipsa Loquitur does not guarantee that the judge or jury will find the defendant to be liable. It only means that the plaintiff has satisfied their burden of proving a duty of care and a plausible breach of that duty.
Do you ever have a duty to take action? Or is it just a duty to avoid negligent behavior?
Usually, there is no affirmative duty to act. However, there are some exceptions. You have a duty to take action in the following scenarios:
- Once you start giving aid to someone, you are required to follow through and do so with reasonable care. The Michigan Good Samaritan law create an exception to this rule for doctors and nurses. Under that law, medical practitioners are immune from liability for negligence if they had a good faith belief that there was a life threatening emergency. This immunity is revoked if the practitioner was grossly negligent, which is medical malpractice.
- If you were the one to put the plaintiff in peril, you have the duty to help them.
- If there is a special relationship (parent-child, innkeeper-guest, etc.) then the duty of reasonable care may require them to aid the other person.
- If have the ability and authority to control the actions of a third party, you may be obligated to prevent that third party from injuring another person.
- Merchants generally have no duty to protect their customers from the crimes of third-parties. They are only required to take steps to expedite the involvement of police. However, if there is continuous criminal activity at the business which creates a nuisance, then the property owner is liable for any criminal attacks on their customers.
- If a mental health professional overhears a patient threaten violence against someone, and appears willing and able to make good on that threat, then they must either warn the police (and the person being threatened), or hospitalize the patient making the threat.
How do you show that the defendant “caused” the injury?
In order to be liable for an injury or damage, the defendant must be both the “actual” and “proximate” cause. “Actual” cause refers to the literal physical cause of the event. However, even if the defendant is the actual cause it might not be the proximate cause (a cause that is not actual can never be proximate). “Proximate” in this context just means that something is the legal cause of the event.
There are a number of ways to show that someone or something is the actual cause of an accident or injury. One method of doing so is known as the “But for” test. This is where the plaintiff argues that “but for” the negligent actions of the defendant, the plaintiff would not have been injured. Even if there are multiple causes of the injury, the plaintiff might be able to argue that the defendant was a “substantial factor”, in which case they will still be considered the actual cause.
Showing that the defendant is the proximate cause of the injury usually means showing that the injury was a foreseeable risk or consequence of the defendant’s action. Even if the injury was directly caused by the defendant’s negligence, if the injury was unforeseeable in those circumstances, then the defendant will not be liable. For example, if someone hits your car, and detonates the explosive device in your trunk, they would not be liable for the damage caused the explosion.
What if a totally random thing, person, or event suddenly entered the picture and actually caused the injury?
The technical term for this sort of situation is an intervening force. These forces can be either foreseeable or unforeseeable, as can the results of their intervention. Whichever category they qualify as determines what their ultimate effect will be in the law suit. If the ultimate effect of the intervening force was unforeseeable (even if the force itself was foreseeable), then the defendant will not be liable. If the force itself was unforeseeable (you drive recklessly and end up toppling a tree instead of hitting another car), but the result itself was a foreseeable consequence of your negligence (the other car is totaled by the tree rather than your car), then the defendant is still liable. It goes without saying that foreseeable results of unforeseeable intervening forces do not remove save the defendant from liability (your bad driving forces the plaintiff to swerve and hit another driver’s car).
What if the plaintiff had a prior injury that the accident made worse? What if they were really fragile to begin with?
Even if the plaintiff was abnormally prone to injury, you are still liable for the full extent of the damage you cause to them. You take the plaintiff as you find them. This is also known as “the eggshell skull rule”
How is damage determined in negligence cases?
The damage awarded in a negligence lawsuit depends on several factors. There are also multiple types of damages awarded. The complete list of factors and types of damage are as follows:
- Personal injury: all foreseeable direct damage resulting from an injury. This typically includes medical expenses and lost wages. It can also involve nonfinancial damages such as “pain and suffering”.
- Property damage: The reasonable cost of repairing or replacing damaged or destroyed property. When replacing destroyed property, the damage awarded will be the fair market value of the property at the time it was destroyed.
- Punitive damages: Damages meant to punish rather than compensate the plaintiff. These are typically not awarded in negligence cases. However, an exception might be made if the defendant caused the injury intentionally or if they were particularly malicious. Michigan only allows punitive damages where there is emotional harm.
- Interest on damages: will never be awarded. The court will only impose the upfront value of the damages.
- Attorneys’ fees: Almost never awarded in American civil courts.
- Duty to mitigate: All plaintiffs are obligated to take reasonable steps to mitigate the damage. Failure to mitigate will likely cause a reduction in the damages awarded by the court.
- Collateral source rule: Even if a plaintiff receives benefits for the injury from somewhere else, the damages will not be reduced.
Can you be sued for negligently causing emotional damage?
The answer to this question is rather uncertain. In other jurisdictions, the courts recognize the cause of action for negligent infliction of emotional harm. However, the Michigan Supreme Court has not yet officially recognized such a cause of action. There are several cases by the appeals court that have recognized it.
In the event that the Supreme Court actually does recognize it, it is important to know how other states approach the issue. The only situations where emotional harm creates liability is where the plaintiff’s distress is caused by a near miss, where they nearly died or where nearly injured. The plaintiff must have been in the “zone of danger” where them getting killed or injured was a reasonable possibility. The other requirement is that the plaintiff must show physical symptoms of their distress.
There is an exception to the “zone of danger” rule. A plaintiff who was not at risk of death or injury can still sue for emotional distress if the victim who actually got hurt was closely related to the plaintiff and if the plaintiff personally witnessed the accident.
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