Legal Lane: Contributory Negligence

Q.  You may have already covered this in an article I missed, but would like to suggest you write about Contributory Negligence in a future column.  This is something we as truck drivers need to be made aware of so we can try to protect ourselves as much as possible.

I was involved in an accident with a 4 wheeler who admitted to the cop he was speeding (over 50 in a 30 zone) in the rain.  The 4 wheeler come from my right over a hill that was a short distance from the intersection where I was at a stop sign waiting to turn left onto his highway.  He came over the hill after I began my left turn and could no longer see in his direction.

Even with his admission, because there were no witnesses and conflicting testimony (he vs. me) about whether I had actually stopped before turning, the judge found a degree of contributory negligence on my part and although I won, I was awarded only 60% of my damages.  I am guessing that if my logbook had been out of whack (it was not) that 60% would have been reduced to a lesser amount or even zero.

Jim Allred

Negligence is the big daddy of Torts.  A Tort is damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.  Think about that when you discuss your accident.

Let me break negligence down so you can better understand it.  Negligence has four elements: 1) a DUTY on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury.  2) A BREACH of that duty by the defendant.  3) The breach of duty by the defendant has to be the actual and proximate cause of the plaintiff’s injury.  4) And, there has to be DAMAGE to the plaintiff’s person or property.  If any one of the four elements is not true, then there is no negligence.

The law imposes a general duty of care on everyone’s activity.  Any person that engages in an activity is under a legal duty to act as an ordinary, prudent, reasonable person.  It is presumed everyone will take precautions against creating unreasonable risks of injury to others.  No duty is imposed upon a person to take precautions against events which cannot reasonably be foreseen.  Thus, if there is no foreseeable risk of injury to a person, then there is no general duty of care to that person.  Therefore, you have the general rule that a duty of care is owed only to foreseeable plaintiffs.

That brings up the question of the unforeseeable plaintiff.  This occurs when the defendant breaches his duty to one plaintiff and yet causes injury to a second plaintiff, where that foreseeable injury, to the second plaintiff, may or may not have been created at the time of the original negligent act. If you want to spend hours on the internet and get a feel for negligence and the thinking behind it, look up Palsgraf vs. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99.   This is where you find the exciting discussion between Judge Andrew and Judge Cardozo on whether the defendant owes a duty to anyone who suffers injuries a proximate result of his breach of duty to someone, or whether the plaintiff must be located in a foreseeable ‘zone of danger’ before they can recover damages.

What, you might ask, is a reasonable person?  The law has determined that a reasonable person is a reasonable, ordinary, prudent person, measured by an objective standard, has the same physical characteristics as the defendant, average mental ability, and the same knowledge as an average member of the community.  Stupidity is no excuse; however, if you have superior knowledge, then you are required to use that knowledge.  This is where you get the example of professionals.  However, children are held to the standard of a child of like age, education, intelligence and experience.

Breach of duty has two parts.  First, the plaintiff must show the defendant had a duty, and second, it must be shown from these facts that the defendant acted unreasonably.

Then you have the cause of the injury.  The defendant’s conduct must cause the injury and be a ‘cause in fact’.  Several tests exist to determine if the defendant’s conduct was the ‘cause in fact’ of the injury. One is the ‘but for’ test. The injury would not have happened ‘but for’ the act of the defendant.  Additionally, the defendant’s act must also be a proximate cause of the injury.  Not all of the injuries to the plaintiff are actually caused by the defendant, thus the doctrine of proximate causation is a limitation of liability of the defendant.  This means that the defendant is liable for all foreseeable harmful results that are the normal results of his acts.

Of course, for any lawsuit to be filed there must be damages.  That means that actual harm or injury has occurred to the plaintiff.  The damages can be personal, property, and punitive.  For personal injury, the plaintiff is to be compensated for all past, present and future damages such as; medical expenses, pain and suffering, lost earnings.  For property damages the award is for reasonable repair costs, or, if destroyed, then fair market value at the time of the damage.  Punitive damages are for wanton and willful, reckless, or malicious conduct that caused the damages.  However, the plaintiff has a duty to mitigate damages in all cases such as seek appropriate treatment or safeguard the property.

Pure Contributory Negligence is the approach by law that basically says that if you were at fault for any percentage of the accident, then you would receive no damages because you helped cause the damages.  Example, Dick and Jane were in an accident where Tom was injured.  If Tom was even 1% at fault for the accident he would receive no damages.  This seems harsh on Tom, so most states now follow a Comparative Negligence approach where the injured party may recover for his damages even if he contributed to the accident.  Similar to the judge in your accident, he found you 40% at fault and awarded you 60% of your damages.  I am guessing the judge thought you did not allow enough clearance between yourself and the oncoming vehicle, even if the 4 wheeler was speeding.  You know that drivers speed, and could reasonably anticipate a driver could be speeding when they were approaching you.

Some states even follow the modified comparative negligence rule of either 50 or 51% which states you cannot recover any damages if you caused either 49% of the damages in a 50% state or if you caused 50% damages in a 51% state.  That means that if you exceeded either the 49 or 50% cause of the accident then you will not receive any damages.

Let me apply the four elements of negligence to your accident. Your duty to the 4 wheeler was to stop, look both ways and proceed when you were able to perform your turn without causing damage to anyone/anything else.  The 4 wheeler had the duty to follow the speed limit and to slow or stop before he hit your truck.  The breach of duty comes from you not completing your turn safely, the 4 wheelers breach is from speeding and failing to slow or stop.  The actual and proximate cause of the accident was your turning and his speeding.  The damage was to each vehicle.  The judge then determined you to be 40% negligent probably due to your reasonability to stop before entering the highway and the 4 wheeler to be 60% negligent, holding the 4 wheeler more responsible, probably due to his speed.

I have tried to explain negligence in a simple straightforward manner, but as you may imagine, there is a lot more to negligence than I can cover in this article.  Of course, you can always get on the internet or go to the library to do further research.  Just remember that many great legal minds have spent their entire careers studying and writing about negligence.

Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers.  Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates.  Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases.  He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.

800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.co