The tort in question is that a driver hit a child while driving. Below are three different cases of this:

Example 1: Someone is driving in a residential neighborhood at a "safe" speed of about 10 mph. There are several eyewitnesses to this fact. A small child rushes under the car, s/he can't swerve, and kills the child.

Example 2: Someone is driving in the same neighborhood at 30 mph, as recorded by a policeman who arrested him after he hit a child. That's well above the 15 mph considered "safe." This represents a "reckless disregard" for safety.

Example 3: Someone is driving at 10 mph, but is DUI, according to a breathelyzer test conducted by a cop shortly after he hit the child.

Assume the facts are as stipulated above, and there are no evidentiary issues. Is it true that Cases 2 and 3 would be easy to prove in a tort action, and case 1 would be very difficult? Why?

2 Answers 2


Short Answer

Are there some torts for which the proof is “slam dunk” or close to?

Some torts are easier to prove than others, and in certain circumstances the law relieves the victim of the duty to prove negligence, i.e. that the defendant failed to take the actions to prevent harms to third-parties that a reasonable person would have, on a case by case basis.

But, a victim still needs to prove (usually to a judge) that the victim qualifies for an exception to the negligence requirement (the burden of proof of which is on the victim unless an exception applies) in a claim for relief from the defendant, and must still prove that their damages were caused by the defendant, and that liability to the victim is not prevented by the contributory negligence of the defendant, or the comparative negligence of a third party.

Different states and countries have different ways of handling these possibilities. At common law, a categorical approach was used, and the victim had to prove that there was no contributory negligence or intervening cause.

The modern trend is to adopt by statute a system in which the jury allocates percentages of fault to the victim, to the defendant, and to co-defendants or third-parties. Some states add the kicker that there is no liability at all if the victim is more than 50% at fault. Some states make non-victims jointly and severally liable for all injuries even if the people at fault are only a few percent responsible, while other states only make non-victims who are at fault only liable up to their percentage of liability.

In practice, in the lion's share of cases there is one defendant who is clearly at fault, not due to any special legal doctrine, but because the facts are very clear, with no obvious indications of contributory liability, multiple tortfeasors, or alternative causes of the injuries suffered, and conduct giving rise to the harm that puts the defendant clearly at fault. These cases usually settle.

I would put the percentage of such cases where liability is clearly admitted by the defendant tortfeasor at closer to 80% than the 99.99% of cases suggested by DaleM, but at least three-quarters of cases that aren't perfectly simple and admitted, are still settled either out of court, or after a lawsuit is filed, either by negotiations often by a lawyer or unrepresented victim on the victim's side and an insurance adjuster and/or insurance defense attorney on the other, and/or a settlement negotiated with the assistance of a professional mediator helping those parties to the negotiations.


Common Law Legal System Analysis

The following summarizes the law in the U.S. and other countries with tort law systems based upon English common law that have not been entirely superseded by statutes to the contrary.

The elements of a claim for personal injuries or injury to property caused by negligence are (1) duty, (2) breach by negligence, (3) causation, and (4) damages.

Most lawsuits for personal injury are based upon a negligence theory, and ordinary negligence is the lowest threshold for most kinds of liability to third-parties for money damages subject to exceptions set forth below. Negligence is a form of mens rea which means "intent" and is established if rather than being negligent, conduct is instead, grossly negligent, willful and wanton, reckless, knowing or intentional (a.k.a. "scienter").

In addition to negligence theories there are intentional torts such as trespass, battery, intentional infliction of emotional distress, outrageous conduct, etc., but those are uncommon in civil lawsuits, because intentional torts aren't covered by the defendant's insurance and because it is usually harder to prove intent that is more than negligence than mere negligence. But, intentional torts often give rise to liability for punitive damages and not just compensatory damages. Mere negligence of a victim usually does not reduce or eliminate intentional tort liability, although there are defenses to intentional tort liability (like self-defense) that are based upon the conduct of the victim.

Usually negligence means failure to take the care necessary to prevent injury to a third-party of a reasonable person under the circumstances as determined on case by case basis without reference to any prior precedents by the trier of fact.

In the U.S., the trier of fact in a personal injury case is usually, but not always a jury, typically of six or twelve persons, who must reach a unanimous verdict. I believe that civil juries are still used in PI cases in Canada as well. In most other civil law countries, and in the U.S. and Canada when a jury trial is not elected in a person injury case, the case is usually decided by a single trial judge in a bench trial.

In some cases whether a person's failure to take a precaution was reasonable under the circumstances can be determined using the "Learned Hand" test which compared the cost of taking the precaution to the increased probability of an accident occurring happening without taking the precaution times the damages that it is expected that an accident arising from not taking the precaution would prevent.

There are several categories of cases in which proof of negligence is not necessary, or is presumed, if other facts can be shown in a lawsuit for personal injuries. In all such case, the victim must still prove by a preponderance of the evidence that the damages claimed were caused by the act in question.

It is still a defense that the victim's injuries were caused mostly or completely by some different accident or some other cause than the conduct of the defendant.

For example, suppose that someone is accidentally given peanuts to which they have an allergy, in a product that claims to be peanut free, causing someone to have a severe allergic reaction that is life threatening, but before they die of the allergic reaction, they are killed by a piece of debris that strikes them after being dropped from an airplane passing overhead. The maker of the purportedly peanut free food is spared liability because their product for which they had strict liability in tort was not the cause of the injury suffered that caused the wrongful death.

1. Negligence per se.

If someone violates a statute or regulation intended to prevent the kind of injury that occurred and an injury occurs that violation is negligent as a matter of law, something that is called "negligence per se".

For example, if you get into an accident while engaged in drunken driving, and harm someone else, that is likely to be a negligence per se case.

While there are a few fact patterns and statutes/regulations that have been found to constitute negligence per se, or to not constitute negligence per se (e.g., the City and County of Denver has a statute requiring property owners to clear their sidewalks of snow that has been held to not constitute negligence per se), in most cases, a novel legal analysis of the statute applied to the fact pattern by the judge must be conducted.

In most states, however, a mere traffic ticket or conviction, or citation for violating an ordinance or civil regulation, cannot be used as evidence in a personal injury case. At trial, instead of proving negligence in the general sense, you could prove that the defendant violated that statute or regulation.

In contrast, a violation of a criminal statute, e.g. a felony negligent homicide conviction, can be used to prove negligence without the jury in the civil lawsuit separately deciding if the criminal statute was violated.

Also, the existence of negligence per se, doesn't usually preclude the possibility that there is contributory negligence of the victim in which case the relative fault of the victim and the defendant must be decided. For example, maybe both the victim and the defendant were both driving drunk.

Similarly, many states allow the consideration of the fault of a third-party as either an intervening cause, relieving a defendant from liability, or as someone to whom fault may be allocated either as a non-party at fault or as a co-defendant.

For example, maybe the stoplight was broken and the defendant was drunk, and the government has waived sovereign immunity for broken stoplights. A jury could allocate liability between the stoplight owner and the drunk driver as it saw fit.

2. Res ipsa loquitor.

The doctrine of res ipsa loquitor presumes negligence in the absence of proof to the contrary by the defendant (i.e. shifts the burden of proof of negligence to the defendant) in circumstances where accidents usually don't happen in the absence of negligence and any ability to prove negligence or lack thereof is usually hard to obtain or in the sole control of the defendant.

The court decides if the facts are such that the doctrine applies.

The classic modern res ipsa loquitor fact pattern is a commercial airplane crash. Usually, the airline is liable to the passengers harmed in an airplane crash unless it can prove it was without fault. For example, the airline might prevail in a res ispa loquitor case of a commercial airplane crash by proving in the case of a recent commercial airline crash in Tehran, Iran that the plane was shot down by missiles that accidentally hit the commercial airliner mistaking it for hostile incoming aircraft, rather than due to the fault of the airline.

3. Strict liability

There are a variety of case where strict liability in tort is imposed and the defendant has liability for any damages or injury that the defendant caused. Some of the most common of these cases include:

  • Product liability. A defendant is liable for all harm caused by a product that is defective in manufacturing, that is defective in design, or that is caused because the defendant failed to warn of a non-obvious risk posed by the product. Proof of a manufacturing defect, a design defect, or a failure to warn substitutes for proof of negligence.

  • Ultra-hazardous activities. A defendant is strictly liable for all harm caused by conducting an ultrahazardous activity such as harm from flooding caused by a failed dam, harm from use of explosives, etc. without regard to proof of negligence.

  • Employee injuries. An employer is strictly liable for all injuries and diseases suffered by employees on the job in most U.S. jurisdictions. Usually, this is accompanied by a statute that limits the employer's liability to what is covered by a worker's compensation insurance policy that complies with state regulations if such a policy is in force, but liability is usually unlimited if no worker's compensation insurance policy is in force.

  • Breach of warranty. If the maker of a product gave a warranty that it would not do something (e.g. break within the first 100,000 miles) and it did, the breach of warranty would substitute for proof of negligence.

  • Respondeat superior. A principal is 100% liable without regard to fault for the torts of his agents, and an employer is 100% liable without regard to fault for the torts of his employees. In general, this is not true of parents and children, with parents liable for torts of their children only if the parents were negligent in supervision, and there is considerable variation in the law over whether an owner of an animal is responsible without proof of fault for the actions of the owner's animal or instead is only responsible for negligent supervision of the animal.

4. No Fault Systems

Many states have systems where the person injured is covered entirely by their own insurance for any harm that they suffer, and not by the person who is at fault, in minor car accidents as defined by statute.

A car-pedestrian accident causing the death of a small child would almost never be covered by such a regime, which is intended for minor fender bender accidents between two vehicles.

Civil Law Analysis

In countries with civil law systems, typically based directly or indirectly upon the civil codes of France, Germany, the Netherlands, Spain or Italy (all of which are indirectly derived from the law of the late Roman Empire) which are nearly universal in Continental Europe, Latin America, Quebec, former European colonies in Africa and Asia that do not utilize Islamic or tribal law or have communist legal systems, there are typically a very small number of civil code sections in the title of the civil code related to the law of obligations that govern tort liability that are fleshed out mostly in legal treatises written by law professors and to a lesser extent by national supreme court precedents, that govern tort liability.

The core statutory provision typically says something to the effect that a person is liable for injuries caused by that person's fault, with little elaboration.

This is usually interpreted to mean that any personal injury legally caused by a person's actions must be remedied with money damages payments to the victim, without regard to true negligence in the common law sense. But, this somewhat broader notion of causation incorporates some minimal sense of wrongful action on the part of the defendant, even if it would not rise to true negligence in common law countries. It is applied without juries and hence is more predictable in that way that a pure case by case determination.

The damages which are compensable in those countries are much narrower than in common law countries. Typically, no awards are allowed for non-economic damages other than perhaps permanent disfigurement (e.g. pain and suffering) and typically only out of pocket medical costs must be compensated in the context of countries with universal health care systems that leave victims with only minimal out of pocket medical costs. So, typically, a tort judgment in a civil law countries will cover only damages along the lines of co-pays, lost wages, and property damage, making tort awards much smaller than in the U.S.

Punitive damages, available to victims in lawsuits when injuries are caused recklessly or intentionally or with gross negligence in many U.S. jurisdictions, are almost never allowed in civil lawsuits in civil law countries.

One reason that tort law is less of a consideration and less elaborate in civil law countries than in the U.S., is that the stakes are typically much lower, and much cheaper to insure against if there is a judgment.

In civil law countries the initial trial is typically before a three judge panel with one judge taking a lead role, subject to trial appeal of law and fact in what amounts to a trial de novo in common law legal practice, by a five judge panel involving more senior judges as well.

Your Examples

Example 1: Someone is driving in a residential neighborhood at a "safe" speed of about 10 mph. There are several eyewitnesses to this fact. A small child rushes under the car, s/he can't swerve, and kills the child.

The child's next of kin in a wrongful death action would need to identify some action that a reasonable person would not have taken that this person did, that caused the child to be killed. The the jury finds that the driver was not negligent, there is not liability to the child's next of kin.

The defendant could also point to the third-party negligence of the person with custody of the small child to fail to restrain the child from rushing out into the street, to mitigate or eliminate their liability.

Example 2: Someone is driving in the same neighborhood at 30 mph, as recorded by a policeman who arrested him after he hit a child. That's well above the 15 mph considered "safe." This represents a "reckless disregard" for safety.

The child's next of kin in a wrongful death action would probably bring both negligence and negligence per se claims against the driver, arguing that driving at 30 mph was something that a reasonable person would not have done under the circumstances and that this caused the accident as a negligence claim, and also that the driver was violating the speed limit which is against the law and designed to prevent this kind of accident so that negligence would be presumed.

The evidence of the arrest of the driver would not be admissible evidence and would not be disclosed to the jury. The evidence of a speeding ticket would not be disclosed to the jury but the next of kin could use evidence from the policeman's radar gun to prove speeding and obtain a negligence per se instruction dispensing with the need for the jury to analyze the driver's negligence on a case by case basis.

A criminal conviction for an actual crime related to the accident as opposed to a traffic offense, such as negligent homicide, would be sufficient to impose liability as a matter of law upon the defendant without the jury revisiting the facts, but there would still need to be a damages hearing on the appropriate amount to award to the next of kin from the death.

The defendant could also point to the third-party negligence of the person with custody of the small child to fail to restrain the child from rushing out into the street, to mitigate or eliminate their liability, in the case of either a speeding violation or a negligent homicide conviction, and as a defense in the negligent homicide criminal prosecution.

Example 3: Someone is driving at 10 mph, but is DUI, according to a breathelyzer test conducted by a cop shortly after he hit the child.

The analysis in this case is the same as that in example 2. If the DUI offense was a crime and was determined to be a negligence per se offense, the conviction could be used to establish the driver's negligence subject to third party negligence partial defenses (a small child cannot as a matter of law be contributorily negligent).

The defendant could also argue that even though the driver was negligent as shown by the DUI offense, that the DUI condition was not a cause of the injury, for example, by showing that automated safety features of the car would have kicked in before any reasonable person no matter how sober, could have taken any action to prevent the injury.

Indeed, if the car had automatic safety features of that type and they failed to work, for example, because the device was built with a defective wire that didn't transmit a warning to the break because it was below specifications for the device, the child's next of kin could have a products liability claim against the safety feature maker, or the defendant could name the safer feature maker as a non-party at fault and use their strict liability to reduce the driver's own liability proportionately to fault.


All torts have to be proved.

In 99.99% of cases the proof is by admission of the tortfeaser.

That is, they agree to pay damages with or without admission of liability.

Where liability is contested, there are never any “slam dunks”. There are strong cases, even very strong cases, but when someone else is deciding the case, there are no certainties. Remember, if your opponent thought they were going to lose, they’d settle.

Looking at your examples, it seems that the tort you are thinking of is negligence. In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant:

  1. had a duty to the plaintiff,
  2. breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person),
  3. the negligent conduct was, in law, the cause of the harm to the plaintiff, and
  4. the plaintiff was, in fact, harmed or damaged.

Where the issue is not one of evidence, that is, the facts are as you say and are not in dispute, the question is not “what happened”, but “is what happened negligence”.

For all the examples, 1, 3, and 4 are probably not in dispute: there was a duty, the conduct caused damage at law and the plaintiff actually suffered harm. The question to be decided is whether the driver failed to conform to the required standard of care.

For examples 2 and 3, most courts would conclude they didn’t. For example 1, some courts might decide that the way the driver drove did conform to the required standard and others that they didn’t. The legal argument would not be about “proof”, it would be about the standard the law requires.

  • Closer to 95%-98% but yeah. I think that the question maker is trying to ask about negligence per se and strict liability and res ipsa loquitor claims, relative to ordinary negligence claims, but not articulating this clearly.
    – ohwilleke
    Jan 20, 2020 at 22:52
  • @ohwilleke: I consider your comment "warm." The thrust of my question is "are there some torts that are so egregious (e.g. heavy drinking and driving or throwing a punch) that they fall under the category of "res ipsa loquitor" rather than "accident," or "I stepped over the line with one drink."
    – Libra
    Feb 1, 2020 at 6:18

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .