THE RUN OF THE MILL NEGLIGENCE SUBROGATION CLAIM
JOHN J. O’BRIEN JD, CLU, CPCU
Index:
Introduction
Ordinary Negligence
Forseeability, “but for” and “substantial factor” tests.
Intervening Agency
Concurrent Causation
Negligence Per Se
Ultra hazardous or Abnormally Dangerous Activities (strict liability)
Res Ipsa Loquitor
Respondeat Superior-Vicarious Liability
Negligent Entrustment
Negligent Supervision and Parental Responsibility
Defenses to Negligence Actions
a. Contributory Negligence
b. Last Clear Chance
c. Sudden Emergencies
d. Comparative Negligence
e. Assumption of Risk
f. Act of God
Immunities
Premises Liability
a. Licensee or Invitee
b. Hotels and Landlord’s Liability for Criminal Acts of Others
Intentional Torts
Conclusion
The Negligence Claim
By John J. O’Brien, JD, CLU, CPCU
“Like Lewis Carroll’s snark, cause- in- fact is not easy to describe or locate. Even when we feel that we have grasped it, more often than not we are left clutching just another boorjum or perhaps thin air. And like Carroll’s snark hunters, lawyers and legal scholars have doggedly pursued the elusive concept of cause-in-fact; they have rarely, however, captured it in words adequate to define it or describe what tort goals it serves.” James E. Viator, “When Cause-in-Fact is More Than A Fact: The Malone-Green Debate On The Role Of Policy In Determining Factual Causation In Tort Law.
The Run of the Mill Negligence Subrogation Claim
Introduction
Negligence is the most important basis for liability against another party in the United States today. The concept of negligence has been expanded considerably
through the advent of product liability and warranty doctrines to a degree that product liability and warranty theories of liability hold a separate distinct identity unto themselves in the area of tort liability. On the other hand historically, negligence as a basis for liability in lawsuits by employees against employers has been curtailed through worker’s compensation legislation in all states. Negligence today is continually challenged by legislatures and special interest groups who wish to place caps on damages, exempt public entities and public servants from civil responsibility, provide compensation without pointing blame as in no-fault legislation or even prohibit subrogated insurance companies from access to the civil courts.
Subrogation representatives are required to develop a solid background in the law of negligence. Subrogation is a derivative action. The rights of the subrogated insurance company can rise no higher than its insured. If the insured does not have a good tort case, then his insurance company’s position is no better. It is of interest to know that the modern day law of negligence has lessened the responsibility of a tortfeasor for his negligent actions. Negligence has its origins in strict liability, which emerged from early Anglo-Saxon law. At least until the early 1500s a negligent party was responsible for his acts without regard to intent or causality, “The doer of a deed was responsible whether he acted innocently or inadvertently, because he was the doer…” Wigmore, “Responsibility for Tortious Acts: It’s History”, 7 Harv.L. Rev. 315, at 317 (1984) This theory that a man acts at his own peril and is answerable in trespass even though the injury happened by accident or misfortune had many supporters in this country and was discussed extensively by Oliver Wendell Holmes in his treatise The Common Law before he rejected the theory under what appeared to be a concern that it would breed inactivity amongst Americans which would hinder the growth of our nation:
“ A man need not, it is true, do this or that act,--the term act implies a choice,--but he must act somehow. Furthermore, the public generally profits by individual activity. As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor.” Holmes, The Common Law, (1981), p. 95
Holmes’ sense of justice was offended by this earlier theory of strict liability flowing from acts alone and he sought instead to have the nation endorse the prudent man approach to liability in negligence which is the view adopted by legal scholars and courts today:
“Unless my act is of a nature to threaten others, unless under the circumstances a
prudent man would have foreseen the possibility of harm, it is no more justifiable to make me indemnify my neighbor against the consequences, than to make do the same thing if I had fallen upon him in a fit, or to compel me to insure him against lightning.” P. 96
Some negligence issues such as in bailment and products liability are so prevalent in the subrogation area that they have been given their own treatise in this education series.
Ordinary Negligence
Each of us under our law has a duty towards each other. We operate as prudent people when we drive our motor vehicles, operate our businesses, engage in social activities and maintain our properties and must conduct ourselves in a reasonable fashion so as not to cause injuries to the person or property of others. Our system of laws reflects this by providing either through statute or court decisions that citizens have a duty to exercise reasonable care in their activities so as not to cause injury to others. If this duty, which is owed to others, is violated, then the law provides a remedy to injured parties to sue a tortfeasor and recover damages. Actionable negligence consists of three necessary elements:
1. A duty on the part of defendant;
2. A failure to perform that duty; and
An injury to the plaintiff resulting from the failure.
Some writers paraphrase these three elements and speak in terms of not a duty of the
defendant but a right of the plaintiff hence, according to these writers, the elements of a tort are:
1. A legally protected right
2. A wrongful invasion of that right, and
3. Damages as a proximate result. Lorimer, Perlet, Kempin & Hodosh, The Legal Environment of Insurance, Volume 11, American Institute for Property and Liability Underwriters, Third Edition, (1987)
Foreseeability, “but for” and “substantial factor”
The three prong test of duty, breach of duty and damages proximately caused by that breach is uniformly applied in every state; however, a subrogation professional, depending on the jurisdiction where the claim arises may find that additional criteria should be considered in investigating proximate cause. These criteria or tests may be defined as the “but for” rule, “the substantial factor rule” and/or “the foreseeability rule”. The standard for negligence in each state is treated in the state-by-state reference section of this text. States vary in the application of these rules in the standard for negligence. For example, the standard for negligence in Arizona includes a “but for” rule i.e. the damages would not have occurred “but for” the defendant’s conduct. Markowitz v. Arizona Parks Bd., 146 Ariz 352, 354-59, 706 P.2d 364, 366-71 (1985).
In Colorado a forseeability test is applied in determining proximate cause: “The duty to exercise reasonable care extends only to foreseeable damages and injuries that occur to foreseeable plaintiffs.” Leppke v. Segura, 632 P.2d 1057, 1059 (Colo. App. 1981).
Connecticutt follows the substantial factor rule and in Connecticut the plaintiff must
demonstrate that the defendant’s negligence was a substantial factor in producing plaintiff’s damages. Mahoney v. Beatman, 110 Conn. 184, 147 A. 762 (1929).
Perhaps a good way to understand these concepts is to resort to the case law study approach used by American law schools. In Arkansas, to prevail on negligence claims a plaintiff must show a duty, a breach of that duty, injury proximately caused by that breach and damage to the plaintiff. Proximate cause is defined by Arkansas courts as “that which in a natural and continuous sequence, unbroken by any sufficient intervening cause, produces the injury, and without which the result would not have occurred.” Union Pacific R.R. v. Sharp, 330 Ark. 174, 952 S.W. 2d 98 (1998).
It would appear based on the Union Pacific case that Arkansas today follows a substantial factor approach to proximate cause. The breach must produce the injury (unbroken by any sufficient intervening cause) thus leaving the breach as the substantial cause of the injury. We have borrowed the facts from a 1963 Arkansas case that actually applied a foreseeability test of proximate cause and here examine the result applying “foreseeability”, “but for” as well as the “substantial factor” tests.
“Substantial factor” has been defined as “an actual, real factor, although the result may be unusual or unexpected.” Pennsylvania Suggested Standard of Civil Jury Instructions Section 3.5
The “but for” test is less stringent than the substantial factor test. In fact some judges find that jurors understand it without specific instructions since they understand it from every day activities. For example,” but for my bringing an umbrella today, I would have been rained on”.
Under the Restatement of Laws test of substantial factor, one must find that “but for” the defendant’s negligence, the plaintiff would not have suffered injury and that the defendant’s negligence was a “substantial factor” in causing those injuries. “But for” is necessary but not sufficient. Restatement (Second) of Torts
Section, 432 Negligent Conduct as Necessary Antecedent of Harm
In Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W. 2d 117 (1963) the Arkansas defendant maintained a large tank for the storage of tar and negligently permitted some of it to escape onto a children’s playground. The plaintiff’s nine year old son got some of the tar on his feet and the plaintiff’s were attempting to remove the tar with gasoline when a second child fired a cap-pistol creating a spark that ignited the gasoline fumes and resulted in serious burns to the nine year old child.
In the actual case, the court dismissed the plaintiff’s case against the defendant claiming that this sort of injury, as well as the intervening acts of the other human beings, was not foreseeable:
“To be negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as ‘one from which an ordinary prudent person in the actor’s position—in the same or similar circumstances-would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.’ Later in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W. 2d 74, we added:
‘Forseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.’ Moreover, when the voluntary acts of human beings intervene between the defendant’s acts and the plaintiff’s injury, the problem of foreseeability is still the same: Was the third
person’s conduct sufficiently foreseeable to have the effect of making the defendant’s act a negligent one? Harper & James, The Law of Torts, @ 20.5; Rest., Torts, @ 447.”236 ARK 167, 169
Next, we apply the “but for” rule to the same facts. It would be stated as follows: but for the defendant negligently maintaining its tar tanks by the schoolyard, the plaintiff would have never suffered these injuries. As can be seen, in a “but for” jurisdiction, one could argue that the plaintiff should be able to recover.
And next apply the substantial factor rule to these facts. This rule says that if a person’s act was a substantial factor in bringing on the damages suffered by the plaintiff then it is a proximate cause. Arguing the case to recover a subrogation claim for medical expenses paid to this injured child, one would say that the substantial factor was the flammable tar that defendant’s negligence caused to be on the skin of this child. The other child with a cap gun was a “quirk” and the other child was not negligent but only acting as a child. He could not have possibly known at his age that a cap pistol could cause harm to the other child. The parents, one would argue, were not acting negligently in that it is reasonable that one use a solvent to remove tar. The concept as an advocate for a position is to remove a duty and breach from other parties and leave the defendant’s actions as, at least, “a substantial factor”.
We can apply these three tests to the following facts. A landlord neglects his duty to provide hot water for a tenant. The tenant boils the water and while carrying the hot water from the kitchen to the bathroom, drops the water on a baby causing third degree burns.
Under the “ forseeability” test, there probably would be no liability placed on the landlord; however under the “but for” test there is liability, (but for the landlord’s
negligence, the injuries would have never taken place) and arguably, the landlord’s negligence was a substantial factor in causing these injuries. Consequently recovery could be had under the “but for”, as well as, the “substantial factor” tests but not under the forseeability test.
Intervening Agency
The defendant is not liable if the injuries are caused by an intervening agency that breaks the chain of causation and sets a new chain of causation in motion. Oftentimes in bailment cases, the vehicle for which a claim has been paid was stolen from a garage or parking lot and the subrogation claim is denied on the basis of an intervening agency. However, typically the actions of the thief are not an independent cause. Generally, the argument that is made is that the proper precautions were not taken by the garage such as locks, lights, alarms and guards to prevent crimes such as vandalism and theft so the argument is that the so-called intervening act was foreseeable and does not relieve the negligent garage or parking lot of responsibility. Cases like this are frequently presenting themselves in the subrogation arena and generally recovery on these actions can be accomplished particularly in high crime areas where the frequent occurrence of theft is know to the garage owner and he has not taken the proper precautions to protect an insured’s vehicle.
Many times an insured’s vehicle is not the one stolen but the one that the thief runs into with a stolen vehicle. Subrogation claims in such instances have been brought against the garage or parking lot owner where the vehicle was stolen. This writer has pursued such a claim unsuccessfully in a “forseeability jurisdiction” arguing that damage to third party vehicles was a foreseeable consequence of creating a situation where vehicles can be stolen. The failed endeavor was bolstered with national statistics that stolen vehicles are one hundred times more likely than non-stolen
vehicles to be engaged in accidents involving property damage and personal injuries to third parties.
Subrogation professionals in the property insurance arena are often faced with damage caused by criminals- specifically vandals or arsonist – and seek to recover against a property owner or landowner who knew of criminal activity and vagrants and took no action to prevent their presence or their activities. For example, an insured’s building may have been damaged by a fire caused in a neighboring vacant building by trespassers burning newspapers and refuse in an attempt to keep warm. Subrogation actions against the property owner of the vacant building often meet with failure under the common law rule that there is no duty to protect persons from the criminal acts of others.
But again the test is typically forseeability in most jurisdictions and recovery is obtainable under circumstances where the acts of an intervening criminal are foreseeable.
In Britton v. Wooten, 817 S.W. 2d 443 (1991) the landlord sued the lessee for destruction of a building. The lessee operated a grocery store and its employees stacked trash, papers and combustible material all the way up to the eaves. Third parties set fire to it and the fire climbed the trash to the roof of the building causing the whole building to burn. The lessee argued that they were not responsible because of the intervening actions of criminals. The Court looked at the Restatement of Torts and found liability. Ironically, it was the lessee who inadvertently directed the Court to the Restatement:
“Respondent cites Restatement (Second) of Torts, Sec. 448 in support of the continued viability of criminal acts, per se, as sufficient to cut the chain of causation. That section postulates that ‘an intentional tort or crime is superseding cause’ where
the defendant’s ‘negligent conduct’ only creates ‘a situation which afforded an opportunity’ for another to commit an intentional tort or crime, but it adds an important caveat:
‘…unless the actor (the defendant) at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.’”
The Court found that the defendant did create a situation where it was foreseeable that someone might set fire to this stacked combustible material.
Concurrent Causation
When two or more independent causes combine to produce an injury, each defendant is liable for the entire injury even though the act of either would not have produced the injury. This single indivisible injury rule has its foundation in England and was recognized in the first Restatement of Torts in the 1930s. The rule holds that when two or more actors have caused a single indivisible harm through independent, tortuous acts and indivisible actions, the injured party may recover all damages from each of the actors.
This doctrine is distinguishable from principles of successive causation where injuries suffered by the plaintiff attributable to two defendants can be separated and it is plaintiff’s burden to separate them.
A case illustrating concurrent causation is McLeod v. American Motors Corp.,
723 F.2d 830 (1984) in which the plaintiff was injured by a combination of a rear end collision of her vehicle by a drunk driver and her seat belt not operating properly.
The jury found both the manufacturer of plaintiff’s vehicle and the drunk driver responsible. American Motors appealed claiming that the jury should have apportioned damages. The United States Court of Appeals disagreed with American Motors:
“The Florida cases distinguish between concurrent and successive causation. The typical concurrent causation case involves two defendants whose acts occur at or about the same time and together produce plaintiff’s injury. In this situation, Florida law clearly makes each of the defendants jointly and severally liable for the full amount of plaintiff’s damages. De La Concha v. Pinero ,104 So. 2d 25, 28 (Fla. 1958). The typical successive causation case, on the other hand, involves two or more defendants whose acts occur at distinct times and together produce plaintiff’s total injuries. Florida law apparently holds that in successive injury cases the jury should be allowed to apportion damages between the defendants; however, if damages are not reasonably apportionable, plaintiff may recover the full amount from either of the two defendants. Washewich v. LaFave, 248 So. 2d 670, 672 (Fla. App. 1971); Wise v. Carter, 119 So. 2d 2d 40 ( Fla. App. 1960).
Negligence Per Se
Certain actions are so inherently dangerous that they are considered to be negligent per se. The court may declare them to be negligent without submitting the issue to a jury. Violation of a statute may be negligent per se under certain circumstances. Breach of a statute gives rise to negligence per se claim if the person harmed by the violation are within the intended protection of the statute and the harm suffered is of the type the legislation was intended to prevent.
Often times there is a debate over whether a negligent driver’s failure to hold a
driver’s license should be considered negligence per se. The answer is no. An unlicensed driver is neither barred from recovering for injuries received by himself in an automobile accident nor is he liable for injuries received by another simply because he does not have a driver’s license. There is a small minority of courts that hold that failure to have a license is not conclusive but may be considered as some evidence of negligence.
In the case of Bobbitt v. Ruyman , No.91AP-1423 (Regular Calender) Court of Appeals of Ohio, Tenth Appellate District, Franklin County, 1992 Ohio App 3220, decided June 16, 1992, the defendant was successful in having the plaintiff’s case dismissed claiming that the plaintiff bicyclist was negligent per se. Plaintiff had sued defendant alleging negligent operation of a motor vehicle, which collided with a bicycle plaintiff operated. Defendant moved for summary judgment asserting that the plaintiff was negligent per se and the proximate cause of his own injuries because he was riding his bicycle at night without a light and he was riding his bicycle on the sidewalk in violation of two city ordinances.
In dismissing the case against the defendant the court noted:
“in order to constitute negligence in the violation of an ordinance or statute, it is necessary that the obligation imposed be for the benefit of the person alleging injury, and this, of course, means that one so claiming must stand upon the proposition that the ordinance was intended for his protection.”
“Contrary to plaintiff’s contention, both ordinances were passed for plaintiff’s benefit and to protect against incidents such as the present. While C.C. 2173.06, regarding headlamps, arguably was passed for the benefit of the public as a whole, the ordinance clearly was passed for the benefit of bicyclists by enabling others to see bicycle
traffic. Further, C.C. 2173.10, regarding operation of bicycles on sidewalks, was passed for the protection not of pedestrians, but bicyclists, who are not anticipated as part of the usual pedestrian sidewalk traffic. Despite plaintiff’s urging to the contrary, the ordinances need not be designed for the protection of motorist in order for defendant to assert that plaintiff is negligent per se in violating C.C. 2173,06 and 2173.10. Plaintiff having violated those sections, his actions constitute negligence per se.”
Ultra hazardous or Abnormally Dangerous Activities (strict liability)
Defendant can be held strictly liable for engaging in activities that are considered to present an extreme danger to others. Most states follow the very early case of Rylands v. Fletcher, 3 H. & C. 774, 159 Eng. Rep 737 (1865). In Rylands, a mill owner ordered construction of a dam to get waterpower. The resulting reservoir lay over ancient abandoned coalmines. The mill owner had no reason to suspect that these old diggings led into an operating colliery, but they did. When the dam was closed, water ran down the old shafts, sweeping into and flooding the colliery. The mill owner obtained the water for his own use without drainage facilities. The mill owner’s use was classified as a “non-natural user.”
Courts have expanded Rylands from use of water on land to a wide range of activities including air shows, fireworks, blasting, rock crushing, storage of chemicals, target shooting, and gasoline tanks.
Under the common law if a person keeps or conducts activities on his land which are likely to cause mischief and if something goes wrong, then he is prima facie responsible and answerable for all damages. Negligence is clearly irrelevant to the doctrine. Carrying on the activity itself where injury results is negligence per se.
Under modern case law and under the Restatement of Torts, “abnormally dangerous activity” is substituted for “ultra hazardous activity”. Under the Restatement one who carries on an abnormally dangerous activity is subject to liability for damages caused to another even though he has exercised the utmost care to prevent harm.
Res Ipsa Loquitur
Res Ipsa Loquitur is a rule of evidence applicable in many jurisdictions in the United States in negligent cases. In a case involving the doctrine of res ipsa loquitur, the jury is permitted to consider circumstantial evidence. The jury is permitted to infer negligence from an accident that ordinarily would not have occurred unless someone was negligent. The jury is not required to make such an inference. The jury may either make such inference or refuse to do so.
Res Ipsa Loquitur literally means, “The thing speaks for itself.” It has its origins in England where a chancellor argued that a flour barrel had fallen out of a second story window and injured his client. He argued successfully that flour barrels do not fall out of second story windows unless somebody is careless. The doctrine allows a jury to infer negligence even though no direct evidence of negligence has been introduced. Negligence may not be inferred from the mere fact of injury. The circumstances accompanying the injury permit the inference of negligence.
The elements of res ipsa loquitur that are required to justify an inference of negligence are: (1) a legal duty owing from the defendant to exercise a certain degree of care in connection with a particular instrumentality to prevent the occurrence that has happened; (2) the subject instrumentality at the time of the occurrence must have been under the defendant’s control and management in such a way that there can be no serious question concerning the defendant’s responsibility for the misadventure of
the instrument; (3) the instrument for which the defendant was responsible must be the producing cause of the plaintiff’s injury; (4) the event which brought on the plaintiff’s harm is such that would not ordinarily occur except for the want of requisite care on the part of the defendant as the person responsible for the injuring agency.
In 1995 the Supreme Court of Nebraska considered the doctrine of res ipsa loquitur favorably in a case involving livestock that escaped from pens. The plaintiff’s semi-tractor trailer collided with several of the approximately 175 of the defendant’s cows that were present on highway 6. The cows had broken down a gate to their pen. The defendant offered evidence that the materials used was sturdy and that the gates were periodically inspected and that he exercised the ordinary care required of him. The plaintiff thus had to rely upon the doctrine of res ipsa loqitur that the occurrence of the cows escaping from their pen and appearing on a public highway does not occur in the absence of negligence.
The trial court charged the jury on res ipsa loquitor and the jury awarded damages to plaintiff for the damages to his truck. The Supreme Court of Nebraska affirmed the trial court reversing the court of appeals:
“The Court of Appeals err in holding that res ipsa loquitur is inapplicable to all escaped-livestock cases. There are certain factual situations, a evidenced by the case at bar, wherein livestock ordinarily would not escape onto a public highway in the absence of some negligence.” Roberts v. Weber & Sons, Co. 248 Neb. 243; 533 N.W.2d 664 (June 23,1995).
Respondeat Superior- Vicarious Liability
Courts rely upon the doctrine of respondeat superior as the basis of a master’s liability for injuries to others caused by the negligent acts of his servants. A master under this doctrine may be found vicariously liable for the actions of his servants if the tort was committed within the scope of employment. Whether an act is committed within the scope of employment generally revolves around some type of control theory. An act is considered to be within the scope of employment if at the time of doing the negligent act the employee was acting in furtherance of the employer’s business and the employer had the right to exercise some degree of control over the employee in the conduct of such activity.
A principal is generally liable for the torts of his or her agent under the following circumstances:
a. when the acts are authorized;
b. when the acts are ratified by the principal; or
c. when the acts are within the implied authority of the agent, such as those committed within the scope of his or her employment and in furtherance of the principal’s business.
When the injury is the result of complete departure from the course of employment and purely personal enterprise, the employer generally is not held liable. Furthermore, the principal is not ordinarily liable for willful or intentional injuries of the agent.
Even though an agent does an act which is contrary to the principal’s directions,
the principal may still be liable if the act was within the scope of authority of the agent and in furtherance of the principal’s business. An employee may decide that for that it would be in the best interest of his employer’s business to drive all night and thus reach a customer’s place of business early in the morning even though his employer has a rule that employees should not drive past eleven o’clock in the
evening. The employee is involved in a collision after falling asleep while driving at three o’clock in the morning. In this situation the employer could be held to be liable since the employee was acting in furtherance of his employer’s business.
Where the injury results from a complete departure from the course of employment and is purely personal, the employer is generally not held liable.
The early case of James v. Williams 177 La. 1033; 150 So. 9 ( 1933) is illustrative. Williams operated a funeral business. A funeral car owned by the defendant and being driven by his employee struck plaintiff James. The employee had the car without the knowledge of the defendant and was at the time driving a fellow employee home from work. The defendant did not supply transportation for employees back and forth to work. The court found in favor of the employer:
“The rule which prevails here and elsewhere is that ‘the owner of an automobile is not liable to one who is injured by the negligence of his chauffeur while operating the machine without his knowledge or permission, and for a purpose other than for which he was employed, as where the driver is on errand personal to himself.’ Tinker v. Hirst, supra; 2 R.C.L. 1198.”150 So. 9, 11.
If the agent is classified as an independent contractor the principal can still be responsible for his acts if the principal maintains control over the methods by which the independent contractor performs the work or the principal can also be held responsible for negligence in the selection of the independent contractor.
Generally, some items to look for in determining whether a principal is exerting control over an alleged independent contractor so as to convert the independent contractor to the status of an agent are:
1.The skill required to perform the task assigned to the independent contractor.
Who supplies the tools.
Who directs or decides the manner in which the job is completed.
Type of occupation-whether in the locality the work is usually done by specialist without supervision.
Whether the independent contractor has a line of business, which is distinct from that of the principal.
Terms of employment contract. Did the parties believe they were creating an employer/employee relationship?
Who controls the time in which the job is performed and the hours of work.
Where is the job performed – at the principal’s place of business under his supervision or at another location?
Right of the principal to dismiss the independent contractor.
Payment by time rather than a fixed amount for a job.
Negligent Entrustment
The doctrine of negligent entrustment requires that the defendant carelessly allow someone to use an instrument that could cause harm and that the incompetence of the person in a position of trust was the proximate cause of the injury. The most common example today of negligent entrustment is the parent who permits an incompetent child driver to use an automobile and then the child negligently injures a third person.
Another common example of this theory is when an owner of a vehicle entrusts his vehicle or its operation to a person whom he knows or with the exercise of due care should have known, to be an intoxicated driver. Coble v. Knight, 130 N.C. App. 652; Swicegood v. Cooper, 341 N.C. 178.
Negligent Supervision and Parental Responsibility
This theory is a little different than negligent entrustment. Here the complaint is not that the incompetent child was given a dangerous instrumentality, rather it is that the parents failed to control or supervise their children.
In addition many states have statutes which will be collected in the appendix of this book at the next printing that provide for parental liability for damages caused by minor children. As a general rule these statutes provide for a dollar amount of liability sometimes as little as $300. Typically, liability is automatic and does not require any negligence on the part of the parents.
In order to prevail under a claim of parental negligent supervision in the absence of a statute creating this vicarious responsibility of a parent, the plaintiff must show that: (1) the parents knew of their child’s particular reckless or negligent tendencies (thus knew they needed to exercise control over him) (2) the parents had the ability to exercise control; and (3) the parents did not exercise that control. Finally, the plaintiffs must show that the alleged parental negligence was the proximate and foreseeable cause of the injury suffered. Hau v. Gill 1999 Ohio App. 3258 (1999).
DEFENSES TO NEGLIGENCE ACTIONS
The appendix of this book contains a state-by-state breakdown of those states that follow contributory negligence, comparative negligence and the various forms of each. Contained here is a very general and brief treatment of defenses to negligence actions including contributory and comparative negligence.
a. Contributory Negligence
There was a time when most states would not permit a plaintiff to recover if plaintiff's
own negligence contributed to his injuries. Some states still follow this doctrine. Thus, for example, in the state of North Carolina, contributory negligence is a complete defense to claims of negligence and products liability.
Contributory negligence in those states that follow the doctrine generally is not a defense to gross negligence. However, gross contributory negligence is a defense to gross negligence.
Every person has the responsibility to exercise care for his own safety against injury and if he fails to exercise such care, he is guilty of contributory negligence. The defendant has the burden to show that the plaintiff’s failure to perform a legal duty proximately resulted in plaintiff’s injuries. If defendant is successful in this endeavor in those few jurisdictions that still apply a contributory negligence standard, the defendant can escape liability.
The North Carolina Court of Appeals in ordering a new trial, (after an appeal of a jury award that gave a roadway flagman that was struck in the back by defendant’s automobile no damages), criticizes the doctrine:
“From the outset, we recognize that there are serious questions regarding the validity of the doctrine of contributory negligence as evidenced by the fact that
forty-six states have abandoned the doctrine in favor of comparative negligence .
See Henry Woods, Comparative Fault Sec.1.11 (2nd ed, 1987 and Cum. Supp 1993); Fowler v. Harper, Fleming James, Jr. and Oscar S. Gray, 4 Law of Torts Sec. 22.1 (2nd ed. 1986 and Cum. Supp. 1993). We further acknowledge that the United States Supreme Court has described contributory negligence as a ‘discredited doctrine which automatically destroys all claims of injured persons who have contributed to their injuries in any degree, however slight.’ Pope & Talbot, Inc. v. Hawn, 346 U.S. 406,
409, 98 L.Ed. 143, 150, 74 S. Ct. 202 (1953). The doctrine of contributory negligence, which is a creature of common law followed in this State since Morrison v. Cornelius, 63 N.C. 346 (1869), remains the law of this State until our Supreme Court overrules Morrison…” Bosley v. Alexander, 114 N.C. App. 470
b. Last Clear Chance
A defense that is sometimes available to offset the defense of contributory negligence is the doctrine of “last clear chance”. This applies where the plaintiff by his own negligence places himself in a dangerous condition and the defendant is aware of plaintiff’s condition or aware that the plaintiff was oblivious to the danger and the defendant by the exercise of reasonable care should have been able to avoid injuring plaintiff and the defendant fails or refuses to use every reasonable method to avoid injury and as a result of defendant’s failure, the plaintiff is injured. If the plaintiff proves last clear chance the plaintiff may recover notwithstanding the plaintiff’s contributory negligence.
Sudden Emergency
The defense of sudden emergency may be available in a subrogation negligence action. It allows a jury to consider whether the actions of the defendant were reasonable under the emergency circumstances even though they may not have been reasonable under other circumstances. It is not a legal defense that bars an action rather it is an affirmative defense that allows the jury to apply a different standard of care because the accident was caused by external forces outside the control of the defendant. Sudden emergencies include tire blowouts, ice, fog and snow. Typically they do not include coming upon a stopped vehicle in the roadway.
“ A sudden emergency is a combination of circumstances that calls for immediate
action or a sudden or unexpected occasion for action. A driver of a vehicle who, through no fault of (his) (her) own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonable careful person would have exercised under the same or similar circumstances “ Mathis v. IBP, Inc., 2001 Iowa App 342
d. Comparative Negligence
While contributory negligence rules may prevent a plaintiff from recovering altogether, comparative negligence rules allow the plaintiff to recover but reduce his damages by the injuries caused by his own negligence. Under this doctrine when both the defendant and the plaintiff are at fault, a court will apportion damages between them.
Most states have a comparative negligence rule consisting of one of the following types:
1. Pure rule
2. 50% rule
3. 49% rule
4. Slight versus gross rule
Comparative negligence allows a party who was a major factor in an accident to recover against a party who was less at fault. So if there is a two-car accident and the plaintiff is 60% responsible but suffers injuries, he can recover 40% of his damages against the defendant.
Fifty- Percent Negligence allows a plaintiff to recover damages so long as his or her negligence is no greater than that of the other party. His damages are reduced by the
degree of his fault but if his fault exceeds fifty percent as compared to the other party, he can recover nothing against that defendant.
The Forty Nine Percent Rule allows a plaintiff to recover damages unless his negligence is fifty percent or more. If he is fifty percent at fault he recovers nothing.
Under the Slight versus Gross rule the plaintiff can recover only when his negligence is slight in comparison with the other party’s gross negligence. The plaintiff’s damages are reduced by the degree of his or her negligence.
e. Assumption of Risk
This doctrine is based on the maxim violenti non-fit injuria that means that no injury is caused to someone who consents to the injury. Assumption of risks requires that the person has full knowledge of a condition; such condition must be patently dangerous to him; and he must voluntarily expose himself to the hazard created.
Under the old contributory negligence theory, assumption of the risk was a bar to recovery; however, comparative fault considerations have led to the classification of assumption of the risk into at least three types.
Express assumption of risk occurs when a plaintiff specifically agrees prior to an injury to take his chances as to a known risk. For example, a person agrees to hold a big game safari company harmless for injuries or death arising from hunting lions in deepest Africa. Typically the courts enforce such agreements.
Implied assumption of risk is somewhat different. Implied assumptions of risks are of two kinds. There are those situations where the plaintiff by implication has assumed known risks in a particular activity i.e. one sits in left field knowing that baseballs
are normally hit into the stands there and sometimes fans are hit by these baseballs.
Then there are those situations of implied assumption of risk where the plaintiff knowingly encounters a risk that has been created by the defendant’s negligence. While traditionally this may have been a bar to recovery, in comparative negligence jurisdictions, courts use the actions of plaintiff in assuming the risks merely to reduce his recovery. In essence, assumption of risk in these situations is no more than a comparative fault inquiry.
f. Act of God
The defense of act of God is available in most jurisdictions if the evidence shows that the occurrence was an act occasioned exclusively by violence of nature without the interference of any human agency. It is an act not foreshadowed by the usual course of nature, and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight. In order for the Act of God defense to apply, the natural event must be he sole proximate cause of an injury. It excludes all circumstances produced by a human agency.
A subrogation representative that is pursuing defective construction cases often sees “Act of God” defenses. Defective construction cases usually arise after a storm where the defective construction becomes apparent. These issues are discussed in greater detail in the chapter dealing with faulty construction subrogation.
Immunities
Generally, there are four classes of immunities, namely, sovereign or government, public official, charitable and intra-familial.
Under sovereign immunity, the federal government, state governments and municipal
corporations are immune from suit for functions relating to government but not for proprietary functions. A proprietary function is any business pursuit that a private enterprise could perform, such as supplying gas and water, fire protection, maintaining a park or highways. A political body is subject to suit just like any private entity while performing proprietary functions. Many times, however in claims against political entities there are requirements for notice, dollar limits on liability and sometimes prohibitions against subrogation claims. Consequently, subrogation claims against political entities require special care and attention.
A municipality may be held liable for damages resulting from government functions when the activity results in impairment of property. For example a municipality that operates a sewer treatment plant, in the exercise of its governmental functions, causes damage to property may be held liable.
Claims against the United States are brought pursuant to the Federal Tort Claims Act, which is found at Title 28 Code of Federal Regulations Part 14. It is a complicated field and numerous defenses are available depending on the particular agency involved. Sovereign immunity may apply in some instances. The statute of limitations under the Federal Tort Claims Act is six years; however, notice of the claim must be given within two years, and suit must be filed within six months of the date of denial of the claim by the federal agency.
At common law all charitable organizations enjoyed immunity from suit in tort under either a theory that the charity was assuming some of the responsibilities of government and thus entitled to immunity or under the trust fund theory that gifts were given to charities to be devoted to charitable purposes and the charity held this money in trust and it could not be used for any other purpose. Today, most states have rejected the doctrine of charitable immunity.
Intra-family immunity between spouses and parent and child existed because it was felt that such suits would disrupt family life, use up family resources and lead to collusion and fraud. Today most if not all states have abrogated these immunities. Apparently family members today get along just fine suing each other so long as there is enough insurance money to go around.
Premises Liability
A landowner may be liable to guest, business visitors and neighboring landowners. A landowner may be liable for natural conditions on his land if they create a hazard that the landowner could have corrected. In urban areas a landowner has a duty to use reasonable care to inspect trees to discover if there is a danger of collapse.
The Georgia case of Wesleyan College v. Weber 238 Ga. App. 90; 517 S.E. 2d 813 (1999) is illustrative of the duty of a property owner to inspect trees. The plaintiff’s wife was killed when her vehicle struck a fallen tree that had fallen in light winds from land owned by Wesleyan College onto a highway where she was driving her vehicle. Wesleyan College owns a narrow strip of land between four-lane Forsyth Road (U.S. 41) and a parallel railroad. This strip of property was across the highway from Wesleyan’s president’s house. Such strip was undeveloped and contained a large number of trees. There was evidence presented that the trees were overgrown with vines invested, rot at the bottom, and in generally poor condition. The ground crew at Wesleyan had recommended to the physical plant director that dead and dying trees should be removed but the work was not done because it would require that the highway be closed. In sustaining the large award of damages made by the trial court, this appellate court observed:
“It is still the prevailing rule that the owner of rural land is not required to inspect it to
make sure that every tree is safe and will not fall over into the public highway and kill a man, although there is already some little dissent even as to this, and at least if the defendant knows that the tree is dangerous he will be required to take affirmative steps. But when the tree is in an urban area, and falls into a city street, there is no dispute as to the landowner’s duty of reasonable care, including inspection to make sure that the tree is safe. The cases of trees therefore suggests that the ordinary rules as to negligence should apply in the case of natural conditions, and that it becomes a question of the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented. A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger, even if the tree grew on and became a part of the land by natural condition. We are specifically limiting liability in this case to patent visible decay and not the normal usual latent micro-non-visible accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” 517 S.E. 2d 813, 817.
The owner of land is not liable for normal flow of natural waters from his land nor is he liable for failure to remove snow or ice that has collected naturally on his land. Ordinances that require snow removal do not create grounds for private law suits.
Generally, there is no duty whatsoever owed to trespassers; however, an owner of land will be held accountable to trespassers for creating conditions with the intention of harming trespassers.
An owner of land is responsible for creating artificial conditions that result in damages to others. For example when an owner of land creates a drainage system that
discharges water onto a public highway, it is said that the owner of land has created a nuisance and is liable for the resulting damages. If a possessor of land creates an artificial condition that creates a hazard even for a trespasser, he has a duty to warn. For example, running a wire across a path that is used by snowmobiles.
An owner of land owes a special duty to young children to not have on his property conditions that may be thought of as attractive nuisances i.e. something artificial that is certain to attract young children to the land.
A. Licensee or Invitee
The duty owed a person on the premises of another depends upon the status of the visitor. Both an invitee and a licensee may recover where the injury results from the positive acts of the landowner. A licensee is on the premises with the permission of the landowner. The permission may be expressed or implied as arises because of the relationship of the parties, such as a customer who has an implied license to enter a store to make a purchase. An invitee is a person who comes to the premises for the mutual benefit of himself and the person in possession of the premises. A licensee is one who comes to the premises for his own interest, convenience or gratification, with the consent of the person in possession.
There is a distinction of the duty owed to an invitee as compared to a licensee. The duty owed to an invitee is greater. The Supreme Court of West Virginia dealt with the question of whether the user of a public sidewalk was an invitee or a licensee and concluded that since liability of a municipality is governed by statute, that premises liability questions are not applicable, however, the court did present a good discussion of the different levels of duty a landowner owes to an invitee, a licensee and a trespasser:
“II. DISCUSSION
A. Premises Liability Principles
The issue in this case is whether premise liability principles are applicable in an action against a municipality resulting from Huntington’s negligent failure to maintain its sidewalks in good repair. The circuit court ruled that premise liability principles were applicable to this case. Specifically, the circuit court ruled that Ms. Carrier was an invitee on the sidewalks of Huntington. The circuit court also ruled that Huntington owed no duty to Mrs. Carrier because the defective condition of the sidewalk was open and obvious.
Under premises liability principles an individual on private property may be an invitee, a licensee or a trespasser. Whether a party injured on the premises of another is an invitee, licensee or trespasser is significant under the law of West Virginia. The law imposes different duties of care on possessors of premises with regard to invitees, licensees and trespassers.
This Court has stated ‘ {a} person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business.’ Syl. Pt. 1, Burdette v. Burdette, 147 W. Va. 313; 127 S.E. 2d 249 (1962). The duty owed to an invitee was outlined in syllabus point 2 of Burdette. In Burdette, the Court concluded “ the owner or the occupant of premises owed to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonable safe condition.’ Also, in syllabus point 3 of Burdette we held ‘the owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of actionable negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.
In defining a licensee in syllabus point 2 of Cole v. Fairchild, 198 W. Va. 736, 482 S.E. 2d 913 (1996), we said ‘ a person is a licensee when he or she has permission or consent to enter the premises of another not in response to any inducement offered by the owner or occupant, or for a purpose having some connection with a business actually or apparently carried on there by the occupant, but for his mere pleasure, convenience, or benefit.’ In the single syllabus of Hamilton v. Brown, 157 W. Va. 910, 207 S.E. 2d 923 (1974) this Court held that:
Mere permissive use of the premises, by expressed or implied authority ordinarily creates only a license, and as to a licensee, the law does not impose upon the owner of the property an obligation to provide against dangers which arise out of the existing conditions of the premises inasmuch as the licensee goes upon the premises subject to all the dangers attending such conditions.
As to a trespasser, we held in syllabus point 1 of Huffman v. Appalachian Power Co., 187 W. Va. 1, 415 S.E. 2d 145 (1991) that ‘ {a} trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.’ In syllabus point 2 of Huffman we held that ‘the owner or possessor of property does not owe trespassers a duty of ordinary care. With regard to a trespasser, a possessor of property only needs refrain from willful or wanton injury.”
Carrier v. City of Huntington, 202 W. Va. 30; 501 S.E. 2d 466, 468 (1998).
B. Hotels and Landlords Liability for Criminal Acts of Others
A growing area in the subrogation field is cases involving loss of property or injury to property brought about by the criminal actions of third parties but pursued against a hotel or landlord under claims that the loss would not have occurred had the hotel or
landlord exercised reasonable care to protect against these criminal acts.
At common law these defendants were under no obligation to protect their guests and tenants from intruders. Today, however, many courts are imposing duties on lessors, hotels, stores, shopping centers and public entities to protect against criminal acts that are foreseeable.
The early New Jersey case of Braitman v. Overlook Terrace, 68 N.J. 368, 346, A.2d 76 (1975) is illustrative. In that case there was a break-in and a thief took the tenant’s personal property and jewelry. The lock to the apartment was defective and the tenant had complained to the landlord. In finding the landlord responsible the court quoted from a case involving an assault in a public area of an apartment complex:
“… conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants’ safety, but he certainly is no bystander. And where as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants. 68 N.J. 368, 374 citing Kline v. 1500 Massachusetts Ave. Apartment Corp., 141 U.S. App. D.C. 370, 439 F. 2d 477 (D.C. Cir 1970).”
Intentional Torts
In addition to negligent torts, the law provides a remedy for intentional torts which
include assault and battery, false imprisonment, intentional infliction of emotional stress, defamation, invasion of privacy, fraud, outrage or bad faith, interference with relationship between others, misuse of legal process, intentional torts against property and nuisance. Clearly, in the case of an intentional tort that results in a subrogation claim, there is a remedy. The problem typically is not the issue of liability but the problem of recoverability. Most insurance policies in force do not provide proceeds for intentional acts of insureds and most criminal defendants are both without insurance and without resources. Consequently, intentional torts are not treated in this chapter as a separate entity but are discussed throughout when applicable such as under the standard auto or homeowner’s insurance policy.
Conclusion
This concludes the chapter on the negligence subrogation claim. Such actions place subrogation professionals in a wide area of the law. Knowledge of the nuances and precedents that prevail in this arena cannot help making us more effective in the work that we are performing each day.
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Cases
Bobbitt v. Ruyman, No 91 AP- 1423 Court of Appeals, Ohio (1992).
Bosley v. Alexander, 114 N.C. App. 470.
Braitman v. Overlook Terrace, 68 N.J. 368, 346, A.2d 76 (1975).
Britton v. Wooten, 817 S.W. 2d 443 (1991).
Burdette v. Burdette, 147 W.Va. 313; 127 S.E. 2d 249 (1962).
Carrier v. City of Huntington, 202 W.Va 30; 501 S.E. ad 466(1998).
Coble v. Knight, 130 N.C. App. 652; Swicegood v. Cooper, 341 N.C. 178.
Cole v. Fairchild, 198 W.Va. 736, 482 S.E. 2d 913 (1996).
Collier v. Citizens Coach Co., 231 Ark 489, 330 S.W. ad 74.
De La Concha v. Pinero ,104 So. 2d 25, 28 (Fla. 1958).
Fowler v. Harper, Fleming James, Jr. and Oscar S. Gray, 4 Law of Torts Sec. 22.1 (2nd ed. 1986 and Cum. Supp. 1993).
Hamilton v. Brown, 157 W. Va. 910, 207 S.E. 2d 923 (1974).
Hatsock v. Forsgren, Inc., 236 Ark 167, 365 S.W. ad 117 (1963).
Hau v. Gill, 1999 Ohio App. 3258 (1999).
Huffman v. Appalachian Power Company, 187 W. Va. 1, 415 S.E. 2d 145 (1991).
James v. Williams 177 La. 1033; 150 So. 9 ( 1933).
Kline v. 1500 Massachusetts Ave. Apartment Corporation, 141 U.S. App. D.C. 370, 439 F. 2d 477 (D.C. Cir 1970).
Leppke v. Segura, 632 P.2d 1057, 1059 (Colo. App. 1981).
Mahoney v. Beatman, 110 Conn. 184, 147 A. 762 (1929).
Markowitz v. Arizona Parks Bd., 146 Ariz 352, 354-59, 706 P.2d 364, 366-71 (1985).
Mathis v. IBP, Inc., 2001 Iowa App 342.
McLeod v. American Motors Corp., 723 F.2d 830 (1984).
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Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 98 L.Ed. 143, 150, 74 S. Ct. 202 (1953).
Roberts v. Weber and Sons, Co. 248 Neb. 243; 533 N.W. ad 664 (June 23, 1995).
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Union Pacific R.R. v. Sharp, 330 Ark. 174, 952 S.W. 2d 98 (1998).
Washewich v. LaFave, 248 So. 2d 670, 672 (Fla. App. 1971).
Wesleyan College v. Weber,238 Ga. App 90; 517 S.E. ad 813 (1999).
Wise v. Carter, 119 So. 2d 2d 40 ( Fla. App. 1960).
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