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Personal Injury

  • Negligence - Duty

Negligence - Duty

In order to sue for negligence in a personal injury case, four requirements must be met. First, the plaintiff’s lawyer must show that the plaintiff was owed a duty of care by the defendant. A legal duty is something specific – it’s something a person must do, or a way they must act that is enforceable by law. There is a general duty of care that everyone owes to each other, and that duty can change depending on the circumstances (like the relationship between the parties, or local laws). Which type of duty is owed, or whether there is any duty at all, is ultimately determined by the court.

How does the court decide if the defendant owed a duty to the plaintiff?

In a negligence lawsuit, the court uses a balancing test to determine whether the defendant owed the injured party a duty of care. The court weighs certain factors against each other: on the one hand, the court considers foreseeability of harm, risk and likelihood of the injury. On the other hand, the court considers the kind of burden that imposing a duty on the defendant would create, and whether that burden makes sense. Since deciding the 1990 case Greater Houston Transp. Co. v. Phillips, the Texas Supreme Court has considered foreseeability of the risk of injury to be the most important factor in determining if a duty exists [1].

The test for foreseeability is whether an ordinary person could have reasonably anticipated the injury (or a similar injury) under those circumstances. If an injury was not foreseeable, then there is no duty to prevent it. But if the danger of a similar injury should have been clear to the defendant, it’s considered foreseeable and the court will strongly consider that in determining whether there was a duty owed. The plaintiff’s personal injury lawyer must present evidence of foreseeability to prove to the court that the defendant owed a duty.

Ordinary Duty of Care

Generally, there is no legal obligation to prevent harm from coming to others. But there is an obligation to behave reasonably to avoid CAUSING harm to others. This is called ordinary duty of care, and it is the most basic duty of care owed by everyone to everyone else. It means that we all owe the duty to act as a reasonably cautious person would in a similar situation, to avoid causing harm to others.

In certain circumstances, a defendant may take on additional duties that go above and beyond what the basic ordinary duty of care is. Below are a few of the ways that a person may owe an additional legal duty:

Assumed Duty of Care

A person’s actions can sometimes cause them to take on, or “assume”, a legal duty they normally wouldn’t have. In a personal injury case, the defendant might owe the plaintiff a legal duty because of something the defendant said or did. In order for this duty to arise, the defendant must begin an action that is for the benefit of the plaintiff. When a defendant willingly acts, or goes out of his way to help a plaintiff (the injured party), he takes on an additional legal duty toward the plaintiff. When that happens, the defendant now owes a duty to use reasonable care not to cause any injury to the plaintiff or the plaintiff’s property. Also, the defendant may stop his help at any time and for any reason - as long as the plaintiff is not left in a worse position than before the defendant’s help. The defendant will still be legally responsible if the plaintiff is now in greater danger because of the defendant’s partial help, or if the plaintiff relied on the defendant’s help by passing up other opportunities for help. The defendant’s duty is limited to the specific action he undertakes, so the defendant has no responsibility to act any certain way in the future.

  • A good example of a personal injury case with an assumed duty is the 1982 Texas Supreme Court case Osuna v. Southern Pacific Railroad [2]. A Railroad Company put up flashing lights at a railroad crossing to warn drivers of passing trains. A driver was injured one night when the lights failed to work and she collided with a passing train. The Railroad company was not required by law to put up the flashing lights, but once it did so, it had a legal duty to the drivers to make sure those lights were in good repair.

If the defendant only promises to undertake an action to benefit a plaintiff, the promise alone is not enough for a duty to arise; the defendant must actually take action to help. However, a promise CAN be enough for a duty to arise if (1) the defendant takes any minor steps towards completing the action, or (2) the plaintiff relies on the promise to his/her disadvantage.

Third Parties: The defendant may owe a duty not just to the person he’s trying to help, but also to third parties. If a third party is injured as a result of the defendant’s undertaking, the third party may have a cause of action against the defendant. For example, a 1996 Texas Court of Appeals case, Rao v. Rodriguez [3]. The Rao family were tenants in a building who were killed in a fire as a result of a defective smoke alarm. Rodriguez, a building manager, had previously inspected the smoke alarms for the benefit of the landlord. The court found that Rodriguez owed a duty not only to the landlord, but also to the Rao family as a third party. Therefore, Rodriguez was legally responsible for the deaths of tenants.

Duty of Care Assumed by Contract

Another way that a person can take on a duty is through a contract. A defendant who signs a contract and then does not fulfil his end of the contract can be sued for breach of contract (a different cause of action). Sometimes, the defendant can also, or alternatively, be sued for negligence. There might be a case for a personal injury negligence action if the defendant owed a duty outside the scope of the contract terms. For example, if the defendant is under contract to do a job, he may have a legal duty to do that job with reasonable care or skill. If he doesn’t use reasonable care, then that is a breach of duty, and the defendant could be sued for negligence.

To decide if a negligence claim is appropriate, courts will often look at the type of loss or injury suffered by the Plaintiff. If the damage is limited only to the subject of the contract, then a breach of contract claim is appropriate but a negligence action is not. For example, the 1986 Texas Supreme Court Case Jim Walter Homes v. Reed [4]. When a couple contracted with a company to build a house and the house was defective, the Court found that a negligence claim was not appropriate because the only damage was to the house itself (and the house was the subject of the contract).

When the damage or loss goes beyond the subject of the contract, a court is more likely to consider a negligence action appropriate. For example, when a breach of contract leads to personal injury. A negligence action also might be appropriate if the Plaintiff suffers business losses or property damage beyond the subject of the contract. For example, the 1947 Texas Supreme Court case Montgomery Ward & Co. v. Scharrenbeck, in which the defendant was under contract to repair a water heater and caused the entire house to be destroyed [5].

Third Parties: The defendant’s duty to perform contractual obligations with reasonable care so as not to cause injury to people or property extends to everyone, not only the parties to the contract. This means that third parties can also bring negligence lawsuits for personal injury. The defendant will be liable to anyone injured by his failure to use reasonable care in carrying out the contract.

Duty of Care under the “Rescue Doctrine”

The “rescue doctrine” creates an additional duty for a defendant who creates a dangerous situation. It says that the defendant is legally responsible to anyone who gets injured while trying to rescue the defendant, or another person, from the dangerous situation which the defendant created. The rescuer may bring a negligence action against the defendant, if they’re injured in a way that was predictable from the defendant’s actions. For instance, the 1948 case Longacre v. Reddick, in which a truck driver’s negligence caused a truck filled with gas to crash and light on fire [6]. When the plaintiff tried to rescue the driver from the burning truck, he was injured when the truck exploded. The court decided the explosion was a foreseeable result of the defendant’s actions.

The rescue doctrine only applies if the rescuer acted because they reasonably thought that someone was about to be seriously harmed. Simply a chance of danger is not enough; the danger must seem to be imminent, or about to happen. It’s okay if the rescuer is mistaken about the danger, as long as their belief was reasonable at the time.

Also, the rescue doctrine only applies to situations where the defendant created the danger. If the rescuer is injured while saving the defendant from a house fire, the defendant only owes a duty under the rescue doctrine if the defendant started the fire. (Note: Different rules apply when the rescuer is a firefighter.)

Situations where there is NO duty:

  • No Duty to Act

    Overall, a person has no legal duty to take any action – unless he created a dangerous situation. There is no legal obligation to be a good Samaritan. Generally, there is no legal duty to help someone in danger or prevent someone from harm. Unless, of course, you’re the person creating that harm. When a defendant creates a dangerous situation, then he has a duty to use reasonable care to protect others from injury.

    Depending on the circumstances, it can be complicated to figure out when a dangerous situation was created by a defendant, or not. As always, the court has the final say in each case on whether a duty exists or not.

    Although there is no general duty when the defendant did not create the dangerous situation, there are some circumstances where the defendant DOES have a duty to prevent harm to a plaintiff. Some types of relationships give rise to that duty (like caregiver/child), but not all. A marriage or family relationship between a defendant and plaintiff does NOT give rise to a duty to protect.

    As discussed above, there are also situations where the defendant has a legal duty because of something he did. And, some duties are imposed by statute. But beyond these situations, there is no general legal duty to act.

  • No Duty to Control Other People

    Overall, a person has no legal duty to control the actions of another. Even if a defendant has the ability to control someone else’s actions, he does not usually have any legal obligation to do so. However, in some circumstances, the defendant might have a partial duty to control another person because of the relationship between them. For example, the relationship between employers and employees or parents and children.

    When trying to figure out if the defendant may have a limited duty to control another person, it’s important to look at the nature of their relationship. If their relationship normally gives the defendant a right to control the other person, then there may be a limited duty to control. If the defendant usually doesn’t have the right to control, then he also doesn’t have a duty to control.

    The 2006 Texas Supreme Court case, Loram Maintenance of Way, Inc. v. Ianni, is a good example of a relationship that does not invoke a duty to control. The Court found that the defendant employer did not have any duty to control his off-duty employee, even when the employer knew the employee had violent tendencies [7]. Comparatively, in the 2002 case Texas Home Management, Inc. v. Peavy, the Texas Supreme Court found that a care facility DID a have a duty to control a resident with violent behavioral issues when it allowed the resident to make an unsupervised home visit [8].

    Employers: For an employer to have a duty of control over an employee, the employer must have specifically acted to assert control over the employee. For example, in the 1983 Texas Supreme Court case Otis Engineering Corp. v. Clark, a company supervisor sent home a visibly intoxicated employee mid-shift [9]. The court determined that sending the employee home was an action that asserted control over the intoxicated employee and therefore gave rise to a duty to control him. For comparison, in the 1996 case Estate of Catlin v. General Motors, the court found that the employer’s adoption of a company policy banning alcohol on the job was not enough to give rise to a duty to control. Unlike the supervisor in Otis, the employer did not assert control over the intoxicated employee by taking any specific action towards him, and therefore did not have a duty to control [10]. The company in Otis was held responsible for their employee’s car wreck, while the employer in Catlin was not.

    Parents: Parents generally do not have a legal duty to control their minor children. Children are generally held legally responsible for their own actions. Only in certain circumstances do parents have a duty to use reasonable care to control their children and prevent them from harming others. Whether a Texas court will find a duty to control will likely depend on whether the injury to a third party/plaintiff was reasonably foreseeable by the parent under the circumstances.

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