英美法律制度 Negligence

I. ELEMENTS OF NEGLIGENCE

1. The Duty of Care and its Breach Central to the tort of negligence is the concept of a duty of care. This concept arises from the notion that if we are to live in society with other people, some actions can be tolerated and some can not; some actions are right and some are wrong; and some actions are reasonable and some are not. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others.
– from the judgment (at 580)
reasonable person standard

Tort law defines and measures the duty of care by the reasonable person standard. Would a "reasonable person of ordinary prudence," in Defendant’s position, do as Defendant did? Defendant does not escape liability merely because she intended to behave carefully or thought she was behaving carefully. He is judged by the hypothetical reasonable person.
Palsgraf v. Long Island Railroad Co.

162 N.E. 99 (N.Y. 1928) A passenger carrying a package, while hurrying to catch and board a moving Long Island Rail Road train, appeared to the railroad's (Defendant's) employee to be falling. The employee attempted to help the passenger and caused a package the passenger was holding to fall on the rails. Unbeknownst to the employee, the package contained fireworks, and the employee's effort to help caused the package to explode. The shock reportedly knocked down scales at the other end of the platform (although later accounts suggest that a panicking bystander may have upset the scale), which injured Mrs. Helen Palsgraf (Plaintiff). Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee. The trial court and the intermediate appeals court found for Palsgraf (Plaintiff) by verdict from a jury, Long Island Rail Road appealed the judgment.


Cardozo, writing for three other judges, "there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him." Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability.
if he has not complied with his ―duty of care‖ and, has not acted as ―a reasonable and prudent man‖. 如果一个人没有尽到“注意义务”，没有象 “一个理性且谨慎的人”那样行事。

A person is negligent
过失
Donoghue v Stevenson


On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition plopped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis. She also claimed to have suffered emotional distress as a result of the incident. On 9th April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defendant.


On 26 May 1932, Lord Atkin rose to deliver his speech to the House of Lords and reveal his "neighbour" principle to the rest of the world, derived from the Christian principle of "loving your neighbour" in Luke 10: There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
Negligence
Liability for Negligence 过失侵权的责任 Negligent act
Causality
Injury
In contrast to intentional torts, in he tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. The actor’s conduct merely creates a risk of such consequences. If no risk is created, there is no negligence. Moreover, the risk must be foreseeable; that is, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it. To succeed in a negligence action, the plaintiff must prove the following: the defendant owed a duty of care to the plaintiff the defendant breached that duty the plaintiff suffered a legally recognizable injury the defendant’s breach caused the plaintiff’s injury