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Jenny Schlecht/Agweek

How do you know if you're liable if something happens on your property?

Groundhog day is coming up. Spring will soon be upon us. With the melting of the snow comes the opening up of snowed in roads, and farmers will soon be moving about and getting ready for planting.

Last year I had a farmer come in and ask me about liability for maintaining an abandoned farmstead he owned. Some kids had a bonfire party on the property, and one of the kids ended up getting injured while on his property. I was thinking about that farmer the other day.

In general, "tort law" is an area of law best left to specialists in that field. However, since we all grow up hearing stories about how someone "sued" someone else because they are "liable" for an injury, we all have some exposure to torts. A tort, defined, is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. According to most law dictionaries, "injury" in a tort context is an invasion of a legal right, and "harm" is a loss in fact or a detriment in fact suffered by an individual.

A vast majority of civil liability issues are related in some way to negligence. Negligence is a concept that is the cornerstone of tort law. Through the concept of negligence, compensation is provided to persons who suffer harm or injury. To say that someone is negligent is akin to saying they are "at fault," at least to some degree.

In order for negligence to be established, there are elements that must be established by the injured or harmed party, also known as the "plaintiff." The first element, as they teach in law school is "duty." There must be a legal duty that gives rise to a certain standard of care. The standard of care is typically described as that of a "reasonable and prudent person," taking into account the circumstances. The reasonable and prudent person standard considers several factors, including but not limited to age, mental acumen, knowledge and experience, skill, and physical and mental abilities. In other words, if you are considering whether or not a farmer's pasture fence is up to standard, you compare that standard to a reasonable and prudent farmer, not a reasonable and prudent dentist, or the like.

If there is a duty, then tort law requires determining if there is a "breach" of that duty. Was the duty not complied with? If there is a duty to keep a fence maintained, was the duty to maintain the fence breached? If there was a duty to maintain a building, did the building end up not being maintained? Did the conduct of the defendant fall short of a reasonable and prudent person under the circumstances?

The third element of a tort is "causation". In other words, is there a nexus — a causal connection — between the actions of the defendant and the injury or harm to the plaintiff? Was the harm or injury reasonably foreseeable as a result of the defendant's conduct? And with regard to injury or harm, that's the fourth element of a tort, "damages."

So there you are; duty, breach, causation and damages. The four essential elements of a tort. In order to prove a tort, the general burden of proof is upon the plaintiff, and they must prove their elements by a preponderance of the evidence. "Preponderance of the evidence" is a standard of proof that is often described as "more than 50 percent", although in my personal opinion it's folly to assign percentages to something as subjective as personal conduct. However, in order to get a general idea of standards of proof, be mindful that the highest standard is "proof beyond a reasonable doubt," which is the standard for proving a crime. In the middle is "clear and convincing evidence," and the least onerous is preponderance of the evidence.

Editor's note: Welte is an attorney with the Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in Grand Forks County.

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