To the reader: This article is an opinion piece only offered for entertainment purposes only. Nothing in this article should be construed as legal advice. None of the characters portrayed in this story are real.
Should There Be A Difference Between Negligence and "Oops"?
The law may be a seamless web, but when it comes to certain
kinds of cases, there are parameters. Casualty
claims are just such cases. Casualty
claims focus mainly on the liability of an individual or organization for
negligent acts or omissions, and on compensating for losses caused by said
negligent acts or omissions. Succinctly
stated, these cases require assignment of blame. And, to the extent these cases focus primarily
on monetary remuneration, the assignment of blame is an essential because it determines
who gets paid. I have spent a career
defending the interests of individuals as well as companies in a wide variety
of casualty claims. Often the most
difficult element of proof is whether or not the person or entity being charged
is liable; again, the assignment of blame.
I am of the opinion that there is
a difference, at least philosophically, between “negligence” and “oops”. Is there a difference between “negligence”
and an “accident?” Do we always need to hold someone responsible? Is it possible to have an accident without
necessarily being negligent? Are we
incapable of accepting the idea that, “shit happens?”
In your typical casualty case, one person sues another
person seeking money to redress some harm allegedly caused by the other’s
negligent conduct. If said conduct is
blameworthy then the law compels them to pay for the harm caused by that
conduct. First, it is important to
understand the definition of
“negligence.”
Negligence, from the legal standpoint, is more than a mere
“oops!” For most practical purposes, the
law defines negligence as the failure to act reasonably under the circumstances
when harm is a foreseeable consequence.
Negligence in this regard is described by four elements: 1) A duty of care; 2) A breach of that duty
of care; 3) Damages (or harm); and 4) A causal link between the breach of duty
and the damages or harm. Many law school
Tort classes spend nearly an entire semester on the concept of negligence, so
do not let my brief description here fool you into thinking it is anything
close to this simple. Each of the
aforementioned elements contains many complexities, twists and turns, and
almost always evolves based on the actual facts of each case.
So, how is negligence different from an “oops”? Here’s a simple factual scenario to
consider. Darren Defendant is walking
home from work on a beautiful weather day.
He’s taking the same route he takes every day. At the time of the incident, he is on the
street around the corner from his home.
As he is passing the bakery where he stops for Danish every morning, he
waves at Bakery Bill, the owner, his friend.
As he is waving at Bakery Bill, he takes his eyes off his direct path
for a period of time long enough to wave and inadvertently bumps into Patsy
Plaintiff. Patsy Plaintiff was carrying
a cup of coffee in her hand as she walked in the opposite direction. As a result of the bump, Patsy Plaintiff’s
coffee spills on her very expensive silk blouse thus ruining it. Unfortunately for Darren Defendant, Patsy
Plaintiff’s father is an attorney with an office across the street to which
Patsy Plaintiff retreats in anger and frustration over the damage to her
blouse. Patsy Plaintiff’s father
immediately files a lawsuit claiming Darren Defendant was “negligent” and seeking
damages in the amount of $500 for Patsy Plaintiff’s blouse.
I know it’s hard to believe that Patsy Plaintiff and her
father would actually sue over this, but stranger things have happened. I use this example to demonstrate how two
minds can differ over whether the damage to Patsy’s blouse was caused by
“negligence” as legally defined, or as a result of a mere accident; an “oops”,
if you will. So, consider the elements: Did
Darren owe Patsy a duty of care? Did
Darren breach that duty of care? Did Darren’s
breach of the duty of care cause Patsy’s harm (damaged blouse)?
First, we can resolve the element of damage. That’s clear.
The blouse was ruined and it was a $500 blouse. Next, we can dispel the issue of causation
insofar as we know undisputedly how the blouse was ruined. Far more complex, however, and the real focus
of this essay, is whether or not Darren can be said to have acted unreasonably
when he waived to his friend in the window.
In my opinion, the resolution of this issue is not nearly as clear cut
as the others previously dispelled.
Then, one must consider what Patsy was doing in the moment before the
bump. Could she have avoided the
collision had she been paying attention or was she finger-typing a text
message? Was there some condition on the sidewalk that might have contributed
to the occurrence in some way?
The real issue here is one of responsibility. Should we always find fault, or can we simply
accept that sometimes “shit happens”? Remember
the facts: Darren was walking down the
street on his way home on a familiar street in good weather when he waved to
his friend in the window. Was he really
acting unreasonably? Some would say that
taking his eyes off his path was unreasonable insofar as it was reasonably
foreseeable that he could bump into someone.
Since when does waving at someone under the circumstances constitute
unreasonable behavior? We could blame
him for being careless, but was he acting unreasonably so that his conduct
could be deemed negligent and thus hold him legally responsible for the damaged
blouse? Would we look at this seemingly
“harmless” scenario differently had Patsy died from an undiagnosed and
extremely delicate brain aneurysm that burst as a result of being merely bumped
by Darren? Should his conduct be deemed unreasonable under these circumstances?
How would we view Darren’s responsibility had he bumped
Patsy who spilled her coffee which left a puddle on the sidewalk, that “Collin
Coplaintiff” slipped in, causing him to lose his skateboard which was tied to
his pack with a worn shoestring, which skateboard then rolled into the street
causing a car to swerve into oncoming traffic and hit a light pole that fell
into the coffee puddle causing an electrical short, that caused a citywide
power outage, that caused the computer at the library to catch fire, requiring
the fire department to respond at high speed and a fire engine rear-ended a car
that did not heed the siren’s warning which got pushed into the gas pump at the
gas station causing an explosion that made such a concussion as to cause glass
to break two towns away which startled John, a local computer programmer
causing him to accidentally hit a sequence of keys that unleashed a computer
virus that shut down the entire world’s access to the internet?
And what if Darren bumps Patsy and she spills her coffee and
walks into the nearest corner store to fetch a napkin and, while at it, buys a
winning lottery ticket worth $42 million dollars? Does Darren get a cut?
I’m sure you would agree that we, as a society, will almost
always appoint responsibility to a set of facts based on the totality of the
circumstances. If the extent of the
damage was spilled coffee, we might wave it off as an “oops” and say no harm –
no foul. If the harm caused is more
extensive, we might take a more dim view of the same behavior. It all comes down to this: the more we suffer, the more we want to hold
someone else responsible, regardless of the conduct involved. It’s easy when the conduct is sinister (but
still unintentional), and much more difficult when the conduct is seemingly
innocent.
I’m not going to draw any conclusions about Darren’s
liability. I could argue it either way.
There is no legally right or wrong answer – only arguments; some of which may
prove more convincing than others when made to 12 members of the community
sitting in jury box given the task of deciding one way or the other how to
assign blame. I’m merely pointing out
that sometimes shit happens and we don’t always need to blame someone for
it. Some might attribute certain
happenings to karma, chance, fortune, providence or destiny; others to the
alignment of the stars or the status of the seasons, or even the tides. How far do we take foreseeability such that
we distinguish between an “oops” and negligence? Where do the law and the course of natural
events cross? Do they ever? And if they do, why? Tough questions and few answers. I
guess you could say that’s why I love my profession.
For more information, please visit my website: www.golkinlaw.com
Or, you may contact me via email: larry@golkinlaw.com
