I was trying to find a parking spot in our overcrowded garage yesterday when I got an abject lesson in what certain folks think us lawyers do. I was behind an elderly lady who was going far too slow for my tastes. Nevertheless, rounding a corner in the garage, this woman broke suddenly to allow a roughly 30-year-old woman, who was walking, to get out of the middle of the driving lane. After getting out of the way, the younger woman yelled back to the elderly woman in front of me: "YOU WANT A LAWSUIT? YOU WANT A LAWSUIT?"

Honestly, I had to smile at how little this younger woman seemed to know about her rights and the other lady’s potential liabilities. Who knows what a jury would have said about the liability issues, or sorted out the issue of comparative fault, but the young woman certainly seemed to think that she had the case as good as won.

This strange little vignette of Americana got me thinking. We do a lot of public speaking to health agencies about their potential liability for negligent inspections; we also represent lots of people who are foodpoisoning victims; but how much does the average person actually know about liability, much less liability in food cases? So at the risk of boring people stiff, I thought i’d take some time to explain the law we face in our "tort" cases.

 “Liability.” There are various reasons for it—e.g., for breach of contract, medical negligence, or for an intentional assault—but one concept predominates. Liability means that the party in the wrong must do something—most of the time, pay money—to return the injured party to his pre-injury state. But here’s my one caveat: like many things in this blog-post, this definition is merely a generalization and is not intended as an exhaustive discussion.

My torts professor, a grandfatherly sort who taught in the old-school, unabashedly direct manner, saw his as the most important job of any professor teaching first year courses: teaching the basics of tort liability. Liability having been treated (albeit briefly) above, what, you may ask, is a tort? When stripped of its contentiously political stripes, a tort is merely a civil wrong. And what is a civil wrong? Well, it bears certain resemblances to a crime—at least in the sense that both address conduct that our legislatures and courts have deemed improper—but without the threat of criminal sanction. It is what you mean when you say that so-and-so was driving negligently, slammed into the back of my car causing severe injury to my neck, and now owes me a certain amount of money as compensation—i.e., to return me to my pre-injury state.

Now to the task at hand: breaking down the concept of tort liability—more specifically, liability for negligence—into its constituent parts, or “elements.” The basic elements of a negligence claim are (1) Duty, (2) Breach, (3) Causation, and (4) Damages. You may already be able to give these elements abstract definition; my advice is not to forgot those pre-existing ideas altogether, because legal concepts should be grounded in common sense, but to allow the following discussion to focus, broaden, or refine those ideas as necessary.

Duty. In simplest terms, a “duty” is a legal obligation to act for somebody else’s benefit. For clarity’s sake, let’s put the cart before the horse and decide, first, what is meant by “acting for somebody else’s benefit.” This could mean any number of things. A parent acts for her child’s benefit when she rescues her struggling toddler from the pool’s deep end; a fireman acts for another’s benefit when he rushes into a blazing inferno to save somebody; and a friend acts for your benefit when he shows up to your birthday party bearing gifts. The trick, obviously, is not deciding when somebody has acted for another’s benefit, but deciding when somebody has a legal duty to so act.

A legal duty to act for somebody’s benefit may arise from (1) statute, ordinance, or other legislative enactment, (2) contract, or (3) the common law. The first two, I hope, are relatively clear. The common law, which is the judge-made body of precedents and rules that, just as much as any legislative enactment, define when a person must act for another’s benefit.

Common law duties are disclosed, at least in written form, in judicial opinions, various treatises, and other legal texts. Lucky for those disinterested in boredom, though, common law duties may also be thought of, to some extent, as the more common sense duties. These are the duties that our courts have deemed of so much social utility that they exist regardless of whether the legislature has given its official—i.e. statutory—sanction. For instance, the common law tells us, as does common sense, that the mother in the example above had a legal duty to act for the benefit of her drowning child; it also tells us that an airline, taxi-cab, or railroad company owes its passengers a legal duty to act for their benefit and safety. Most importantly, however, the common law tells us that each of us, when doing an act that creates a risk of harm to another, must do that act with ordinary care and prudence. This last concept will become clearer after a discussion of the second element, “breach” of duty.

Breach. A person breaches his duty when he does not act as his duty required. Duties can be very specific, or they can be more nebulous. It is relatively easy to know when a person has breached a specific, statutorily prescribed duty; the question is simply whether he did what the words of the statute said. The more nebulous duties, typically those established by common law, generally require that an act be done reasonably. Thus, the question in these instances is whether the person acted as a “reasonable person” would have.

Certainly not me, and probably not you, the reasonable person is that non-existent, a-sexual being who does every act with ordinary care and prudence. Please note that “ordinary” means just that: ordinary, not extraordinary. Thus, when walking down the hall with an open-bladed knife, the reasonable person would not flail about, but he also may not encase the knife in concrete and peak around every corner to ensure the safety of others. In other words, the reasonable person acts with ordinary care in light of the risks created by his conduct. And, perhaps the most important point in this blog post, the duty to act as the reasonable person would attends each and every of our acts, including driving a car, mowing the lawn, or selling food to the public.

Causation. Not many areas of the law have received more attention than "causation," as a general concept. For present purposes, let’s simplify as much as possible. In bare-bones fashion, causation means that the defendant’s negligent act must have caused the plaintiff’s injury. Admittedly, this definition is a bit circular, using a root of the defined term in the definition as it does, but defining in this fashion helps narrow the focus to those factors, whether physical, temporal, or spatial, that frame the inquiry the best. The question is whether the relationship between the defendant’s negligent act and the plaintiff’s injury is one that the courts will deem sufficient to support liability.

Damages. The “damages” element is merely a requirement that the plaintiff have suffered an injury for which the law provides redress, typically in the form of monetary compensation. This is, perhaps, the simplest element conceptually, but in practice receives the greatest attention because it addresses the bottom line—how much the plaintiff’s injuries are worth. Please note that, as the above definition implies, there are some “injuries” for which the law will not provide redress. For instance, many states follow the “physical injury” rule, or some variation thereof, which requires that the plaintiff have suffered an actual, physical injury before he can recover for his mental or emotional distress.

These are the basics of a negligence claim. Proof comes in many forms, and every case is different. Sometimes, in our food cases, we have an airtight case, as when a series of inspections before an outbreak reveals a food safety problem, or problems, at a restaurant that then causes people to get sick. It’s fairly easy to see why the restaurant would be liable on a negligence theory: it did not act reasonably under the circumstances. If it had, it wouldn’t have had the food safety problems that were revealed on inspection, and people wouldn’t have gotten sick as a result.

But negligence is really only half the story . . . if that. Any food item is a "product" under the law, and this allows us to bring a claim on behalf of the plaintiff for strict liability. Strict liability means that the defendant, in our cases a food manufacturer, is liable without regard to fault. To see what this means in practice, you’ll have to read my next post on the subject. I’m sure you’re waiting on pins and needles.