A high percentage of personal injury lawsuits are based upon claims of negligence. Negligence and intentional torts are both similar in that they result in harm to others. However, negligence actions differ from intentional torts because they are the result of a non-intentional action. There are essentially four elements of a negligence claim that must be met in order to prevail in a lawsuit. There must be a duty of cared owed to another, a breach of this duty of care, actual harm as a result of this breach, and causation. An individual will be on the hook for any harm that arises due to his or her’s negligence actions. If one’s standard of care deviates from that of a reasonably prudent person under same or similar circumstances, then the individual’s actions may be considered negligent.
The concept of the first element of a negligence claim of a duty of care is highlighted in this recent case. Ms. Ponceti and her daughter, Katilynn, lived in an apartment complex located in Louisiana owned by First Lake Properties (“First Lake”). While Katilynn was playing in the courtyard of the apartment complex, a teenager lost control of his bicycle and injured her. Ms. Ponceti sued First Lake, claiming that it was negligent in allowing the teenager to ride bicycles on the sidewalks of the apartment complex.
This is a personal injury lawsuit based upon the previously discussed negligence tort theory. In claiming First Lake was negligent in allowing bikes on the sidewalks, Ms. Ponceti needed to show that First Lake owed her daughter a duty to take reasonable care by preventing people from riding bicycles on its sidewalks that may potentially cause injury. Here a critical issue comes into play: does First Lake owe her such a duty?
Notice that we are not talking about whether Ms. Ponceti or First Lake thinks there is a duty, but rather whether there should be a duty. The test for determining duty is fairly complex and requires balancing multiple factors. Some factors of the test that should be highlighted are: “is there a very high degree of foreseeability that harm may occur to give rise to duty?” “The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor is the existence, frequency, and similarity of prior incidents of crime.”
Now we apply them to our case to examine duty. The first sentence tells us that foreseeability is not only one of the factors, but also an important one to prove duty. The next sentence means whether First Lake could foresee Katilynn’s injury depends on many factors. The last sentence says the existence of similar prior incidents is a key factor for showing foreseeability. Ms. Ponceti ended up losing the case. She admitted that she had never seen anyone riding bicycles in the courtyard before her daughter’s injury and First Lake had never received any complaints about individuals riding bicycles in the courtyard. The court concluded from theses facts that Ms. Ponceti failed to show any similar prior incident; therefore, Katilynn’s injury was not foreseeable to First Lake and it did not owe her the duty to prevent individuals from riding bicycles on its sidewalks.
As you can see from the example above, duty is examined by a multi-factor test and the test is very case-specific. Its vagueness leaves a lot of room for arguments that can significantly affect the outcome of a case. It is therefore essential to have legal representation to provide you with well-developed arguments in order to be prepared to tackle the most difficult legal issues.