Negligence in business
The second major area of tort liability involves unreasonable behavior that
causes injury. This area of tort is called negligence. In the United States more
lawsuits allege negligence than any other single cause of action.
Negligence takes place when one who has a duty to act reasonably acts
carelessly and causes injury to another. Actually, five separate elements make
up negligence, and the following sections discuss these elements. Sidebar 10.6
also summarizes them. In business, negligence can occur when employees
cause injury to customers or others; when those invited to a business are
injured because the business fails to protect them; when products are not
carefully manufactured; when services, such as accounting services, are not
carefully provided; and in many other situations.
10. DUTY OF CARE
A critical element of the negligence tort is duty. Without a duty to another
person, one does not owe that person reasonable care. Accidental injuries
occur daily for which people other than the victim have no responsibility,
legally or otherwise.
Duty usually arises out of a person’s conduct or activity. A person doing
something has a duty to use reasonable care and skill around others to avoid
injuring them. Whether one is driving a car or manufacturing a product, she
or he has a duty not to injure others by unreasonable conduct.
Usually, a person has no duty to avoid injuring others through nonconduct.
There is no general duty requiring a sunbather at the beach to warn
a would-be surfer that a great white shark is lurking offshore, even if the
sunbather has seen the fin. There is moral responsibility but no legal duty
When there is a special relationship between persons, the situation
changes. A person in a special relationship to another may have a duty to
avoid unreasonable nonconduct. A business renting surfboards at the beach
would probably be liable for renting a board to a customer who was attacked
by a shark if it knew the shark was nearby and failed to warn the customer.
The special business relationship between the two parties creates a duty to
take action and makes the business liable for its unreasonable nonconduct.
* A person doing
something has a legal
duty to act reasonably
to avoid injuring
Existence of a duty of care owed by the defendant
to the plaintiff.
Unreasonable behavior by the defendant that
breaches the duty.
Causation in fact.
An actual injury.
>> sidebar 10.6
Elements of Negligence
302 PART 3 Legal Foundations for Business
In recent years, negligence cases against businesses for nonconduct have
grown dramatically. Most of these cases have involved failure to protect customers
from crimes. The National Crime Prevention Institute estimates that
such cases have increased tenfold since the mid-1970s.
One famous case involved the Tailhook scandal. A group of male naval
aviators was sexually groping female guests as they walked down the hallway
at a Hilton hotel. (Remember that an unconsented-to touching is an intentional
tort.) One of the females who was sexually touched sued the Hilton
hotel for negligence in knowing of the aviators’ behavior and failing to protect
her. A jury awarded her a total of $6.7 million against Hilton.
The extent of a business’s duty to protect customers is still evolving. Note
that in Case 10.2 the New Hampshire Supreme Court says that the defendant
restaurant has no special relationship to the plaintiff, but still rules that it
may have a duty to protect restaurant customers.
case 10.2 >>
IANNELLI v. BURGER KING CORP.
200 N. H. Lexis 42 (N. H. Sup. Ct. 2000)
MCHUGH, J.: The plaintiffs, Nicholas and Jodiann
Iannelli, individually and on behalf of their three children,
brought a negligence action against the defendant,
Burger King Corporation, for injuries sustained
as a result of an assault at the defendant’s restaurant.
During the late afternoon or early evening hours of
December 26, 1995, the Iannelli family went to the
defendant’s restaurant for the first time. Upon entering
the restaurant, the Iannellis became aware of a
group of teenagers consisting of five males and two
females, whom they alleged were rowdy, obnoxious,
loud, abusive, and using foul language. Some in the
group claimed they were “hammered.” Initially this
group was near the ordering counter talking to an
employee whom they appeared to know. The Iannellis
alleged that one of the group almost bumped into
Nicholas. When that fact was pointed out, the teenager
exclaimed, “I don’t give an F. That’s his F’ing problem.”
Nicholas asked his wife and children to sit down
in the dining area as he ordered the food. While waiting
for the food to be prepared, Nicholas joined his family
at their table. The teenagers also moved into the dining
area to another table. The obnoxious behavior and
foul language allegedly continued. One of the Iannelli
children became nervous. Nicholas then walked over
to the group intending to ask them to stop swearing.
As Nicholas stood two or three feet from the closest of
the group, he said, “Guys, hey listen, I have three kids.”
Whereupon, allegedly unprovoked, one or more of the
group assaulted Nicholas by hitting him, knocking him
to the ground and striking him in the head with a chair.
The plaintiffs argue that a commercial enterprise
such as a restaurant has a general duty to exercise reasonable
care toward its patrons, which may include a
duty to safeguard against assault when circumstances
provide warning signs that the safety of its patrons
may be at risk. The most instructive case, given the
issues presented, is Walls v. Oxford Management Co.
In Walls, a tenant of an apartment complex alleged
that the owner’s negligent maintenance of its property
allowed her to be subjected to a sexual assault in the
parking lot. We held that as a general principle landlords
have no duty to protect tenants from criminal
attacks. In as much as landlords and tenants have a
special relationship that does not exist between a commercial
establishment and its guests, it follows that the
same general principle of law extends to restaurants
and their patrons. We recognized in Walls, however,
that particular circumstances can give rise to such a
duty. These circumstances include when the opportunity
for criminal misconduct is brought about by the
actions or inactions of the owner or where overriding
foreseeability of such criminal activity exists.
Viewing the evidence in the light most favorable to
the plaintiffs, we must decide whether the behavior of
the rowdy youths could have created an unreasonable
risk of injury to restaurant patrons that was foreseeable
to the defendant. If the risk of injury was reasonably
Note that the duty to act reasonably also applies to professional providers,
like doctors, lawyers, CPAs, architects, engineers, and others. In most negligence
cases, however, the standard of reasonableness is that of a reasonable
person. In negligence cases involving professionals, the negligence standard
applied is that of the reasonable professional. The negligence of professionals
is called malpractice.
As Sidebar 10.7 suggests, professional negligence is a controversial area
of tort law.