Negligent Traffic Director

One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.

In September, a man was bicycling when a dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw a driver who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind the driver wanting to turn left and were beginning to pass him on his right.

The dump truck stopped and motioned for the driver to make his turn, which he did, and collided with the bicyclist who had not stopped along with the dump truck. The bicyclist sued both drivers for his injuries.

At the District Court, the Judge ruled that the dump truck driver was “no more responsible for the bicyclist than he was for any of the hundreds of other drivers on the road,” and that there is “no authority for the bicyclist’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” The bicyclist appealed this decision to the Supreme Court.

The Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for the driver turning left to turn.

In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused the bycyclist’s injuries and damages.

Contributory Negligence

Under § 27-1-702, contributory negligence does not bar recovery in an action for negligence resulting in death or injury to person or property if the contributory negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought. This means that a plaintiff could be found partially negligent but he could still recover damages from his suit.

For example, imagine that Fred is bicycling down the road when he is struck by Ben who is driving on the same road. Even if the jury finds that Fred was negligent in his bike riding because he was wearing headphones while riding, he can still recover damages in a suit against Ben so long as the jury finds that Ben’s negligence was greater than Fred’s. To put a number on it, so long as Fred was only 49% negligent, Ben’s negligence is greater than Fred’s and Fred can still prevail.

However, “any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering.” This means that while Fred can recover damages in his suit against Ben, those damages must be reduced by whatever percentage negligent Fred was. So, in the earlier example where Fred was 49% negligent, any damages that were awarded to Fred in his suit would be reduced by 49%. He can still recover 51% of whatever is awarded to him, the percentage that Ben was responsible for.

If the jury finds that Fred’s negligence is equal to or greater than Ben’s negligence, then Fred will be unable to collect any damages under the rule. In a case with multiple defendants, the combined negligence of all the defendants is compared with that of the plaintiff to make the same determination.

The Elements of Negligence

Earlier, we discussed what negligence is. At it’s most basic, negligence is the failure of a person to exercise reasonable care. But, like all things lawyers touch, this is a complicated concept. There are different ways to think about negligence, but a case generally boils down to 4 elements: duty, breach, causation, and damages. There are different formulations of this breakdown, but I like the 4-part explanation best.


All negligence claims are based on a duty. Most often, that is the general duty we all have to exercise reasonable care when interacting with the world. Most often, this forms the basis of a negligence claim. But some people, when performing certain tasks, are held to a higher standard of care. A doctor, for example, can be held legally negligent for failing to do something that an ordinary person would never be expected to do. This is a large part of why all injury and negligence cases are so different. Analyzing what happened depends on who did it, and in what capacity they were acting.


Once we have established what duty was owed, we need to determine whether there was a breach of that duty. Although it can be a significant factor, the fact that an injury occurred does not necessarily mean that there was a breach of the duty. As the standard of care rises and the task being performed becomes more complex, it can be harder and harder to tell whether a breach occurred. In the case of the doctor mentioned above, it may require expert testimony by another doctor to determine whether the first doctor took the precautions that were reasonable. In more ordinary circumstances, like a driver who failed to secure his trailer, common sense intuitions about safety can go a long way – but fall short in unexpected ways. The bottom line is that a trained negligence lawyer will probably be necessary to determine whether there was a breach or not. And sometimes, the area is just so gray that a judge or a jury is required to make the final determination.


For a negligence claim, it is not enough that a duty was breached. The injured party must also show that the breach was the cause of the damages that he sustained. This can be a very complicated step. A law school trick for determining causation is the but-for test. Ask yourself, “but for the defendant’s actions, would the injury have taken place.” If, in a world without the defendant’s action, the injury still would have occurred, we probably don’t have causation. On the other hand, if we take away the defendant’s action and the injury disappears, that’s a good sign that causation exists. It’s important to remember that there is some limit on causation. People are only responsible for the reasonably foreseeable results of their actions. If the damage was a result of a long and windy path of improbable and unlikely reactions, it may be that legal causation will limit the defendant’s responsibility and determine that causation doesn’t exist. Again, this is highly fact specific and worth consulting an expert about for your situation.


Finally, a negligence case must have damages. It’s not enough that a duty was breached and that breach caused something to happen to a victim. The breach must cause damage to the victim. Damages are about placing a monetary value on the harm to a victim. They are imperfect and occasionally insulting, but the best our legal system has to offer. There are different types of damages. Special damages are quantifiable dollar amounts that the victim lost because of the harm. They include compensatory damages. They might include lost wages, medical bills, or damage to your car as examples. General damages are reflective of harm that doesn’t have a specific dollar amount. Pain and suffering a commonly used example. Finally, we have punitive damages which are intended to punish the negligent party for his actions. They don’t exist to compensate and aren’t tied to the harm suffered but instead to how badly the defendant acted.