BREACH OF DUTY
At the core of negligence is the unreasonable behavior that breaches the
duty of care that the defendant owes to the plaintiff. The problem is how do
we separate reasonable behavior that causes accidental injury from unreasonable
behavior that causes injury? Usually a jury determines this issue,
but negligence is a mixed question of law and fact. Despite the trend for
judges to let juries decide what the standard of reasonable care is, judges
also continue to be involved in the definition of negligence. A well-known
definition by Judge Learned Hand states that negligence is determined by
“the likelihood that the defendant’s conduct will injure others, taken with
A train rounds a bend
but cannot stop in
time to avoid running
over an intoxicated
person who has fallen
asleep on the track. A
jury is not likely to find
the railroad’s behavior
foreseeable, then a duty existed. We hold that the teenagers’
unruly behavior could reasonably have been anticipated
to escalate into acts that would expose patrons to
an unreasonable risk of injury. The exact occurrence or
precise injuries need not have been foreseen.
Viewed in a light most favorable to the plaintiffs,
the evidence could support a finding that the teenagers’
obnoxious behavior in the restaurant was open and
notorious. Because the group was engaging in a conversation
at times with a restaurant employee, it could
be found that the defendant was aware of the teenagers’
conduct. The near physical contact between one
teenager and Nicholas Iannelli at the counter and the
indifference expressed by the group member thereafter
could be deemed sufficient warning to the restaurant
manager of misconduct such that it was incumbent
upon him to take affirmative action to reduce the risk
of injury. The plaintiffs allege that at least one other
restaurant patron expressed disgust with the group’s
actions prior to the assault. The manager could have
warned the group about their behavior or summoned
the police if his warnings were not heeded.
In summary, the trial court’s ruling that as a matter
of law the defendant owed no duty to the plaintiffs
to protect them from the assault was error. While as
a general principle no such duty exists, here it could
be found that the teenagers’ behavior in the restaurant
created a foreseeable risk of harm that the defendant
unreasonably failed to alleviate. Accordingly, we
reverse and remand.
>> CASE QUESTIONS
1. Under the decision in this case, when does a duty arise for the defendant restaurant
to protect its customers?
2. What does the court suggest that the restaurant manager should have done in this
case that would have satisfied the duty?
3. What do you think is the difference in this case between a “special relationship”
duty and the duty of the restaurant?
304 PART 3 Legal Foundations for Business
the seriousness of the injury if it happens, and balanced against the interest
which he must sacrifice to avoid the risk.”
Examples of Negligence Failure to exercise reasonable care can cost
a company substantial sums. In one instance the licensed owner of a National
Car Rental agency in Indianapolis was ordered to pay $5.5 million to a man
who slipped on the floor and broke his hip. To save overtime pay the rental
agency had had its floors mopped during, instead of after, normal working
hours. Unaware that someone was mopping the floors behind him, the plaintiff
had stepped backwards, slipped, and fallen on the wet floor.
In another case arising from unreasonable behavior, Wal-Mart Stores
agreed to pay two young girls a settlement of up to $16 million. A store
employee had sold the girls’ father a shotgun used to kill their mother in spite
of the fact that a federal form filled out by the buyer indicated that he was
under a restraining order. Federal law bars those under restraining orders
from purchasing guns.
Even before the terrorist attacks of 9/11, New York’s World Trade Center
(WTC) had been bombed. In 2005 a Manhattan jury determined that
the Port Authority of New York was negligent in the earlier attack, which
involved a blast from a truck filled with explosives that terrorists had driven
into the public parking lot under the WTC. Six people died and over a
thousand were injured. Is it an example of litigation gone wild to hold the
Port Authority liable for a terrorist act? Consider that before the bombing
a report commissioned by the Port Authority, which controlled the WTC
Few people would disagree that physicians are extremely
unhappy about the rapidly growing insurance
premiums they have to pay. Some physicians have
gone on strike; others have left the practice of medicine.
The exact causes of the situation, however, are
difficult to determine. Consider the following and
make your own evaluation.
• Studies suggest between 44,000 and 98,000
people die annually from medical errors.
• A study in the New England Journal of Medicine
found that 9 out of 10 patients who suffer disability
from medical errors go uncompensated.
• In 2004 total payments for medical malpractice
claims fell 8.9% nationally.
• As of 2005, 27 states have capped malpractice
• In 2004 malpractice insurance costs for various
medical specialties rose between 6.9% and 24.9%.
Question: what would be the impact on the cost
of malpractice insurance if physicians had patients
sign arbitration clauses before providing service
in all but emergency cases? These clauses might
provide that disputes with a physician be resolved
before an arbitration board appointed by the state
medical association. These clauses are currently not
widely used and are specifically prohibited by several
states. But under the Federal Arbitration Act,
the state prohibitions are likely preempted by the
federal law because medical practice has a substantial
impact on interstate commerce. The Supreme
Court has already ruled that law practice has such
an impact, so it is likely that medical practice does
Sources: BusinessWeek, The New York Times, Department of Health and
>> sidebar 10.7