Plaintiff in a tort action must establish his case by a clear preponderance of evidence. An indispensable element that plaintiff must establish in a claim for negligent injuring is the existence of a duty by defendant to protect plaintiff from injury. Fault is determined by asking the question: How would a reasonably prudent individual have acted or what precautions would he have taken under the same or similar circumstances? Failure to take every precaution against all foreseeable injury to another does not necessarily constitute negligence. On the contrary, negligence requires that the risk be both foreseeable and unreasonable. Failure to take a particular precaution to guard against injury to another in connection with a risk constitutes negligence only where it appears such a precaution would have been undertaken under the circumstances by a reasonably prudent individual. One is bound to protect against what usually happens or what is likely to happen under the circumstances. Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings.
Plaintiffs' young son died of injuries he sustained when he was struck in the head by the hand of a fair patron winding up to pitch a baseball at a concession stand. Plaintiffs brought a negligence action against the fair and its insurers. The trial court awarded the parents with damages against the insurers for the death of their son.
Does lack of foreseeable harm overcome plaintiff's claim of negligence?
The court reversed the judgment and dismissed plaintiffs' actions with prejudice. The court found defendants free of negligence. The court held that the risk of foreseeable harm to others was outweighed by the utility of purpose for which the enterprise was conducted. The court reasoned that there was no latent or hidden dangers to spectators in the throwing of baseballs, and that the trial court erred as a matter of law in finding the defendants negligent.