WHAT DOES THE TERM NEGLIGENCE MEAN IN THE CONTEXT OF A LAWSUIT?

The most common type of claim for personal injury is a negligence claim. Negligence is a broad category that covers a huge range of conduct that can make up the basis of a personal injury claim. These claims are also common because of their low level of culpability—carelessness. Unlike assault or battery claims, the defendant in a negligence action doesn’t need to intend any harm. They simply act without proper care and cause injury to another. Below is a brief discussion of some of the most common types of negligence claims.

Negligence In GeneralThough each type of negligence claim may alter the requirements a plaintiff must prove, the basic formula will generally hold true throughout. A plaintiff must show a duty owed to the plaintiff, a breach of that duty, an injury to plaintiff, and that cause of the injury was defendant’s breach. This language may seem strange, but the concepts behind these key phrases and words are probably familiar. The legal “duties” negligence deals with are largely common sense: people should refrain from doing things that could foreseeably cause injury to others. Driving is a great example of this. Drivers are all relying on other drivers to operate their vehicles in a reasonable manner. When someone fails to act as society expects a reasonable person to, that person has breached this duty. When this failure to act reasonably leads to an injury, a negligence claim exists. “Causation” in terms of negligence is fairly relaxed, generally just requiring the plaintiff to have avoided injury but for the defendant’s carelessness. Think of a “pile up” accident: one driver follows too close and hits the car in front of them, and several other cars collide in a chain reaction. The first driver’s failure to leave adequate room will be considered the “cause” of all the ensuing accidents. Finally, the plaintiff must suffer an injury. A fender bender or close call is quite frightening, but the law won’t punish carelessness unless there is an actually injury suffered. When these four things are present, a negligence claim exists.

Negligence Per SeOne type of negligence that is fairly common is negligence per se. This requires showing that the defendant broke a law and injured the plaintiff as a result. The law serves as the “duty” and the violation serves as the “breach.” A plaintiff must show four additional facts in order to succeed in bringing this claim. The first two are causation and injury, as with a standard negligence claim and discussed above. The next two are appropriate type of injury and appropriate type of plaintiff. The plaintiff must be the “type of person” the legislative body had in mind when it outlawed the conduct. For example, driving while intoxicated is illegal because a drunk driver can hurt other drivers and pedestrians. Thus, other drivers and pedestrians would fit into the “type of person” the law exists to protect. The plaintiff must also suffer the “type of injury” the law sought to avoid. This generally goes hand-in-hand with the type of plaintiff: the drunk driving laws seek to avoid injuries from car accidents, whether occurring to other drivers, passengers, or pedestrians. However, imagine an ordinance prohibiting residences from owning pit bulls. A deliveryman approaches the door of a residence while the owner’s pit bull is asleep on the porch. The deliveryman doesn’t see the dog, trips over him, and breaks his arm in the fall. The deliveryman is likely the type of plaintiff the ordinances seeks to protect (guests of a residence), but tripping over the sleeping dog is not the type of injury the municipality had in mind—it was concerned with dog bites and attacks.

Premise Liability (Slip And Falls)Nearly as common as general negligence is premise liability, which most commonly occur as slip and falls. All Kansas property owners owe a duty to keep their property reasonably safe for guests. For example, a retail store is expected to keep floors free from spills. There are some unique obstacles to this species of negligence claims. First, Kansas utilizes the “slight defect rule.” This rule states that if the plaintiff is injured by the sole defect on the property and that defect is sufficiently slight, the plaintiff cannot recover. For example, if a customer is walking to a store through the parking lot and trips on a small pothole, there would seem to be a premise liability claim. However, if the pothole was both small and the only such defect in the parking lot, the store may escape liability through this defense. Another key to these claims is knowledge of the defect. This cuts to reasonableness: it is only unreasonable to fix the defect if the owner knows or reasonably should know about it in the first place. When a plaintiff can overcome these two hurdles, a premise liability claim exists.

Defective ProductsA plaintiff can bring a claim for negligence in the manufacture, design, or warnings of a product. The plaintiff simply shows that the manufacturer did not act reasonably in one of these three areas. A claim can also exist if a retailer sells a product that it knows to be defective. These claims are generally brought along with a more powerful product liability claim—strict product liability. Because strict liability product claims attach liability when the plaintiff simply shows the product was defective, they are generally preferred over negligence claims based on defective products.

Negligent Entrustment/HiringOwners of certain personal property and employers can be negligent in their “business-type” conduct, resulting in negligent entrustment or negligent hiring. An employer must take reasonable care to hire employees that will not pose unreasonable dangers to others. For example, a shipping company should not hire delivery drivers with revoked licenses. If an employer does hire such a driver and that driver causes an accident, the employer’s negligent hiring decision will be found to be the cause of any injuries that result. Similarly, the owner of personal property must take care not to loan items to a person that may foreseeably pose a great risk to others. These negligent entrustment claims often revolve around cars and firearms. The key to both of these types of negligence is whether the employer or owner should have known the third-party would be dangerous in the position. Without this knowledge, the defendant acted reasonably in hiring the person or loaning the property.