The foundation of liability for negligence is the knowledge that the act or omission involved danger to another. Negligence presupposes a duty of taking care and the duty of taking care presupposes knowledge or its equivalent[i]. A person cannot be held responsible on the theory of negligence for an injury unless there is a breach of a duty[ii].
The foreseeability of harm is a prerequisite for the recovery of damages. The foreseeability of the danger establishes the duty[iii]. The doctrine of foreseeability is the basis of tortuous liability. The true basis of foreseeability is that men should be charged only with that knowledge or notice of what a reasonable or ordinarily prudent person would have foreseen. The law recognizes that the conduct of a reasonable man varies with the situation with which s/he is confronted. Thus, when a person has no reason to suspect a danger, s/he is not required to look for it. Nor can a person be charged with a failure to observe or anticipate danger when, in similar circumstances, an ordinarily prudent man would not have done so[iv].
The degree of foreseeability of the third person’s injury is far greater in the case of his/her contemporaneous observance of the accident than that in which s/he subsequently learns of it[v].
Foreseeable risks are of two types. The first class involves actual physical impact. The second type applies to the instant situation. Under general principles, recovery should be had in such a case when a defendant should foresee a risk severe enough to cause substantial injury in a person normally constituted[vi].
A proprietor would be liable for a dangerous condition caused by a third party, in the absence of actual or constructive notice of the condition. Based on the mode of operation, the proprietor could reasonably foresee that the dangerous condition could regularly occur. “The mode-of-operation rule generally allows a plaintiff to recover without showing the proprietor’s actual or constructive knowledge of the condition if the plaintiff shows the proprietor adopted a mode of operation where a patron’s carelessness should be anticipated and the proprietor fails to use reasonable measures commensurate with the risk involved to discover the condition and remove it”[vii].
[i] Wright v. Demeter, 442 P.2d 888, 890 (Ariz. Ct. App. 1968).
[ii] Sloss-Sheffield Steel & Iron Co. v. Allred, 247 Ala. 499, 500 (Ala. 1945).
[iii] Rosendahl v. Tucson Medical Ctr., 380 P.2d 1020, 1022 (Ariz. 1963).
[iv] Kuhn v. Goedde, 26 Ill. App. 2d 123, 129 (Ill. App. Ct. 4th Dist. 1960).
[v] Dillon v. Legg, 68 Cal. 2d 728, 739-740 (Cal. 1968).
[vii] Jackson v. K-Mart Corp., 251 Kan. 700, 710 (Kan. 1992).