negligence

(nĕg'lĭ-jəns)

1. The state or quality of being negligent.
2. A negligent act or a failure to act.
3. Law. Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party.

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noun

The state or quality of being negligent: laxity, laxness, remissness, slackness. See careful/careless.

Definition: failure to take care
Antonyms: attention to duty, conscientiousness

Failure to exercise that degree of care which a reasonable and prudent person would exercise under the same circumstances.

Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

Negligence is also the name of a cause of action in the law of torts. To establish negligence, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

The concept of negligence developed under English law. Although English common law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of "duty." For example, innkeepers were said to have a duty to protect the safety and security of their guests.

The concept of negligence passed from Great Britain to the United States as each state (except Louisiana) adopted the common law of Great Britain (Louisiana adopted the civil law of France). Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century. Today negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important concepts in negligence law is the "reasonable person," which provides the standard by which a person's conduct is judged.

The Reasonable Person

A person has acted negligently if she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged. In law, the reasonable person is not an average person or a typical person but a composite of the community's judgment as to how the typical community member should behave in situations that might pose a threat of harm to the public. Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person. For example, a majority of people in a community may jaywalk, but jaywalking might still fall below the community's standards of safe conduct.

The concept of the reasonable person distinguishes negligence from intentional torts such as assault and battery. To prove an intentional tort, the plaintiff seeks to establish that the defendant deliberately acted to injure the plaintiff. In a negligence suit, however, the plaintiff seeks to establish that the failure of the defendant to act as a reasonable person would have acted caused the plaintiff's injury. An intoxicated driver who accidentally injures a pedestrian may not have intended to cause the pedestrian's injury. But because a reasonable person would not drive while intoxicated because it creates an unreasonable risk of harm to pedestrians and other drivers, an intoxicated driver may be held liable to an injured plaintiff for negligence despite his lack of intent to injure the plaintiff.

The law considers a variety of factors in determining whether a person has acted as the hypothetical reasonable person would have acted in a similar situation. These factors include the knowledge, experience, and perception of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person's actions.

Knowledge, Experience and Perception

The law takes into account a person's knowledge, experience, and perceptions in determining whether the person has acted as a reasonable person would have acted in the same circumstances. Conduct must be judged in light of a person's actual knowledge and observations, because the reasonable person always takes this into account. Thus, if a driver sees another car approaching at night without lights, the driver must act reasonably to avoid an accident, even though the driver would not have been negligent in failing to see the other car.

In addition to actual knowledge, the law also considers most people to have the same knowledge, experience, and ability to perceive as the hypothetical reasonable person. In the absence of unusual circumstances, a person must see what is clearly visible and hear what is clearly audible. Therefore, a driver of a car hit by a train at an unobstructed railroad crossing cannot claim that she was not negligent because she did not see or hear the train, because a reasonable person would have seen or heard the train.

Also, a person cannot deny personal knowledge of basic facts commonly known in the community. The reasonable person knows that ice is slippery, that live wires are dangerous, that alcohol impairs driving ability, and that children might run into the street when they are playing. To act as a reasonable person, an individual must even take into account her lack of knowledge of some situations, such as when walking down a dark, unfamiliar corridor.

Finally, a person who undertakes a particular activity is ordinarily considered to have the knowledge common to others who engage in that activity. A motorist must know the rules of road and a product manufacturer must know the characteristics and dangers of its product, at least to the extent they are generally known in the industry.

Special Skills

If a person engages in an activity requiring special skills, education, training, or experience, such as piloting an airplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity. In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. Often persons practicing these special skills must be licensed, such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so, because the public relies on the special expertise of those who engage in such activities. Thus, an unlicensed driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licensed driver.

The law does not make a special allowance for beginners with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it seems unfair to hold the beginner to the standards of the more experienced person, this standard protects the general public from the risk of a beginner's lack of competence, because the community is usually defenseless to guard against such risks.

Physical Characteristics

The law takes a person's physical characteristics into account in determining whether that person's conduct is negligent. Whether a person's conduct is reasonable, and therefore not negligent, is measured against a reasonably prudent person with the same physical characteristics. There are two reasons for taking physical characteristics into account. A physically impaired individual cannot be expected to conform to a standard of conduct that would be physically impossible for her to meet. On the other hand, a physically handicapped person must act reasonably in light of her handicap, and she may be negligent in taking a risk that is unreasonable in light of her known physical limitations. Thus, it would be negligent for a blind person to drive an automobile.

Mental Capacity

Although a person's physical characteristics are taken into account in determining negligence, the person's mental capacity is generally ignored and does not excuse the person from acting according to the reasonable person standard. The fact that an individual is lacking in intelligence, judgment, memory, or emotional stability does not excuse the person's failure to act as a reasonably prudent person would have acted under the same circumstances. For example, a person who causes a forest fire by failing to extinguish his campfire cannot claim that he was not negligent because he lacked the intelligence, judgment, or experience to appreciate the risk of an untended campfire.

Similarly, evidence of voluntary intoxication will not excuse conduct that is otherwise negligent. Although intoxication affects a person's judgment, voluntary intoxication will not excuse negligent conduct, because it is the person's conduct, not his or her mental condition, that determines negligence. In some cases a person's intoxication is relevant to determining whether his conduct is negligent, however, because undertaking certain activities, such as driving, while intoxicated poses a danger to others.

Children

Children may be negligent, but they are not held to the same standard of conduct as adults. A child's conduct is measured against the conduct expected of a child of similar age, intelligence, and experience. Unlike the standard for adults, the standard of reasonable conduct for children takes into account subjective factors such as intelligence and experience. In this sense the standard is less strict than for adults, because children normally do not engage in the high-risk activities of adults and adults dealing with children are expected to anticipate their "childish" behavior.

In many states children are presumed incapable of negligence below a certain age, usually seven years. In some states children between the ages of seven and fourteen years are presumed to be incapable of negligence, although this presumption can be rebutted. Once a person reaches the age of majority, usually eighteen years, she is held to adult standards of conduct.

One major exception to the rules of negligence exists with regard to children. If a child is engaging in what is considered an "adult activity," such as driving an automobile or flying an airplane, she will be held to an adult standard of care. The higher standard of care imposed for these types of activities is justified by the special skills required to engage in them and the danger they pose to the public.

Emergencies

The law recognizes that even a reasonable person can make errors in judgment in emergency situations. Therefore, a person's conduct in an emergency is evaluated in light of whether it was a reasonable response under the circumstances, even though, in hindsight, another course of action might have avoided the injury.

In some circumstances failure to anticipate an emergency may constitute negligence. The reasonable person anticipates, and takes precautions against, foreseeable emergencies. For example, the owner of a theater must consider the possibility of a fire, and the owner of a swimming pool must consider the possibility of a swimmer drowning. Failure to guard against such emergencies can constitute negligence.

Also, a person can be negligent in causing an emergency, even if he acts reasonably during the emergency. A theater owner whose negligence causes a fire, for instance, would be liable for the injuries to the patrons, even if he saved lives during the fire.

Conduct of Others

Finally, the reasonable person takes into account the conduct of others and regulates his own conduct accordingly. A reasonable person must even foresee the unlawful or negligent conduct of others if the situation warrants. Thus, a person may be found negligent for leaving a car unlocked with the keys in the ignition because of the foreseeable risk of theft, or for failing to slow down in the vicinity of a school yard where children might negligently run into the street.

Proof of Negligence

In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. The court will instruct the jury as to the standard of conduct required of the defendant. For example, a defendant sued for negligent driving is judged according to how a reasonable person would have driven in the same circumstances. A plaintiff has a variety of means of proving that a defendant did not act as the hypothetical reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that occurred to the plaintiff. Also, a plaintiff might introduce expert witnesses, evidence of a customary practice, or circumstantial evidence.

Statutes

Federal and state statutes, municipal ordinances, and administrative regulations govern all kinds of conduct and frequently impose standards of conduct to be observed. For example, the law prohibits driving through a red traffic light at an intersection. A plaintiff injured by a defendant who ignored a red light can introduce the defendant's violation of the statute as evidence that the defendant acted negligently. However, a plaintiff's evidence that the defendant violated a statute does not always establish that the defendant acted unreasonably. The statute that was violated must have been intended to protect against the particular hazard or type of harm that caused injury to the plaintiff.

Sometimes physical circumstances beyond a person's control can excuse the violation of a statute, such as when the headlights of a vehicle suddenly fail, or when a driver swerves into oncoming traffic to avoid a child who darted into the street. To excuse the violation, the defendant must establish that, in failing to comply with the statute, she acted as a reasonable person would have acted.

In manyjurisdictions the violation of a statute, regulation, or ordinance enacted to protect against the harm that resulted to the plaintiff is considered negligence per se. Unless the defendant presents evidence excusing the violation of the statute, the defendant's negligence is conclusively established. In some jurisdictions a defendant's violation of a statute is merely evidence that the defendant acted negligently.

Experts

Often a plaintiff will need an expert witness to establish that the defendant did not adhere to the conduct expected of a reasonably prudent person in the defendant's circumstances. A juror may be unable to determine from his own experience, for example, if the medicine prescribed by a physician was reasonably appropriate for a patient's illness. Experts may provide the jury with information beyond the common knowledge of jurors, such as scientific theories, data, tests, and experiments. Also, in cases involving professionals such as physicians, experts establish the standard of care expected of the professional. In the above example, the patient might have a physician offer expert testimony regarding the medication that a reasonably prudent physician would have prescribed for the patient's illness.

Custom

Evidence of the usual and customary conduct or practice of others under similar circumstances can be admitted to establish the proper standard of reasonable conduct. Like the evidence provided by expert witnesses, evidence of custom and habit is usually used in cases where the nature of the alleged negligence is beyond the common knowledge of the jurors. Often such evidence is presented in cases alleging negligence in some business activity. For example, a plaintiff suing the manufacturer of a punch press that injured her might present evidence that all other manufacturers of punch presses incorporate a certain safety device that would have prevented the injury.

A plaintiff's evidence of conformity or nonconformity with a customary practice does not establish whether the defendant was negligent; the jury decides whether a reasonably prudent person would have done more or less than is customary.

Circumstantial Evidence

Sometimes a plaintiff has no direct evidence of how the defendant acted and must attempt to prove his case through circumstantial evidence. Of course, any fact in a lawsuit may be proved by circumstantial evidence. Skid marks can establish the speed a car was traveling prior to a collision, a person's appearance can circumstantially prove his or her age, etc. Sometimes a plaintiff in a negligence lawsuit must prove his entire case by circumstantial evidence. Suppose a plaintiff's shoulder is severely injured during an operation to remove his tonsils. The plaintiff, who was unconscious during the operation, sues the doctor in charge of the operation for negligence, even though he has no idea how the injury actually occurred. The doctor refuses to say how the injury occurred, so the plaintiff will have to prove his case by circumstantial evidence.

In cases such as this, the doctrine of res ipsa loquitur ("the thing speaks for itself") is invoked. Res ipsa loquitor allows a plaintiff to prove negligence on the theory that his injury could not have occurred in the absence of the defendant's negligence. The plaintiff must establish that the injury was caused by an instrumentality or condition that was under the defendant's exclusive management or control and that the plaintiff's injury would not have occurred if the defendant had acted with reasonable care. Thus, in the above example, the plaintiff can use res ipsa loquitor to prove that the doctor negligently injured his shoulder.

Duty

A defendant is not liable in negligence, even if she did not act with reasonable care, if she did not owe a duty to the plaintiff. In general, a person is under a duty to all persons at all times to exercise reasonable care for their physical safety and the safety of their property. This general standard of duty may lead to seemingly unjust results. For example, if a property owner leaves a deep hole in her backyard with no warnings or barriers around the hole, she should be liable if her guest falls into the hole. But what if a trespasser enters the backyard at night and falls into the hole? Although the property owner was negligent in failing to guard against someone falling into the hole, it would be unfair to require the property owner to compensate the trespasser for his injury. Therefore, the law states that a property owner does not have a duty to protect a trespasser from harm.

The law uses the concept of duty to limit the situations where a defendant is liable for a plaintiff's injury. Whether a defendant has a duty to protect the plaintiff from harm is a question decided by the court, not the jury. Over time, courts have developed numerous rules creating and limiting a person's duty to others, and sometimes duties are established or limited by statute. Whether the defendant owes the plaintiff a duty depends upon the relationship between the defendant and the plaintiff.

A preexisting relationship can create an affirmative duty to exercise reasonable care to protect another person from harm. For example, an inn has an affirmative duty to protect its guests, a school has a duty to its pupils, a store has a duty to its customers, and a lifeguard has a duty to swimmers.

One always has a duty to refrain from taking actions that endanger the safety of others, but usually one does not have a duty to render aid or prevent harm to a person from an independent cause. A common example of this limitation on duty is the lack of a duty to go to the aid of a person in peril. An expert swimmer with a boat and a rope has no duty to attempt to rescue a person who is drowning (although a hired lifeguard would). A physician who witnesses an automobile accident has no duty to offer emergency medical assistance to the accident victims.

Sometimes a person can voluntarily assume a duty where it would not otherwise exist. If the doctor who encounters an automobile accident decides to render aid to the victims, she is under a duty to exercise reasonable care in rendering that aid. As a result, doctors who have stopped along the highway to render medical assistance to accident victims have been sued for negligence. Many states have adopted "good samaritan" statutes to relieve individuals who render emergency assistance from negligence liability.

Even if a plaintiff establishes that the defendant had a duty to protect the plaintiff from harm and breached that duty by failing to use reasonable care, the plaintiff must still prove that the defendant's negligence was the proximate cause of her injury.

Proximate Cause

Perhaps no issue in negligence law has caused more confusion than the issue of proximate cause. The concept of proximate cause limits a defendant's liability for his negligence to consequences reasonably related to the negligent conduct. Although it might seem obvious whether a defendant's negligence has caused injury to the plaintiff, issues of causation are often very difficult. Suppose, for example, that a defendant negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a utility pole, resulting in a power outage. Clearly the defendant's negligence has in fact caused both the accident and power outage. Most people would agree that the negligent defendant should be liable for the other driver's injuries, but should he also be liable to an employee who, due to the failure of her electric alarm clock, arrives late for work and is fired? This question raises the issue of proximate cause.

Actually, the term proximate cause is somewhat misleading because as a legal concept it has little to do with proximity (in time or space) or causation. Rather, proximate cause is related to fairness and justice, in the sense that at some point it becomes unfair to hold a defendant responsible for the results of his negligence. For example, Mrs. O'Leary's negligent placement of her lantern may have started the Great Chicago Fire, but it would be unjust to hold her responsible for all the damage done by the fire.

In determining whether a defendant's negligence is the proximate cause of a plaintiff's injury, most courts focus on the foreseeability of the harm that resulted from the defendant's negligence. For example, if a driver negligently drives his automobile, it is foreseeable that he might cause an accident with another vehicle, hit a pedestrian, or crash into a storefront. Thus, the driver would be liable for those damages. But suppose the negligent driver collides with a truck carrying dynamite, causing an explosion that injures a person two blocks away. Assuming that the driver had no idea that the truck was carrying dynamite, it is not foreseeable that his negligent driving could injure a person two blocks away. Therefore the driver would not be liable for that person's injury under this approach. When applying this approach, courts frequently instruct juries to consider whether the harm or injury was the "natural or probable" consequence of the defendant's negligence.

A minority of courts hold the view that the defendant's negligence is the proximate cause of the plaintiff's injury if the injury is the "direct result" of the negligence. Usually a plaintiff's injury is considered to be the direct result of the defendant's negligence if it follows an unbroken, natural sequence from the defendant's act and no intervening, external force acts to cause the injury.

Intervening Cause

Sometimes a plaintiff's injury results from more than one cause. For instance, suppose a defendant negligently injures a pedestrian in an automobile accident. An emergency room doctor negligently treats the plaintiff, aggravating her injury. The doctor's negligence is an "intervening cause" of the plaintiff's injury. A cause of injury is an intervening cause only if it occurs subsequent to the defendant's negligent conduct.

Just because an intervening cause exists, however, does not mean that the defendant's negligent conduct is not the proximate cause of the plaintiff's injury. The defendant remains liable if he should have foreseen the intervening cause and taken it into account in his conduct. If a defendant negligently spills a large quantity of gasoline and doesn't clean it up, he will not be relieved of liability for a resulting fire merely because another person causes the gasoline to ignite, because it is foreseeable that the gasoline might be accidentally ignited. Also, it is foreseeable that a sudden gust of wind might cause the fire to spread quickly.

Even if an intervening cause is foreseeable, however, in some situations the defendant will still be excused from liability. If the intervening cause is the intentional or criminal conduct of a third person, the defendant is not liable for this person's negligent conduct. In the example where the defendant spilled gasoline and did not clean it up, he is not responsible for the resulting fire if someone intentionally ignites the gas. Also, sometimes a third person will discover the danger that the defendant created by his negligence under circumstances where the third person has some duty to act. If the third person fails to act, the defendant is not liable. In the gasoline example, suppose the defendant, a customer at a gas station, negligently spills a large quantity of gas near the pumps. The owner of the gas station sees the spilled gasoline but does nothing. The owner of the gas station, not the defendant, would be liable if another customer accidentally ignites the gasoline.

Sometimes, however, a completely unforeseeable event or result occurs after a defendant's negligence, resulting in harm to the plaintiff. An abnormal, unpredictable, or highly improbable event that occurs after the defendant's negligence is known as a "superseding cause" and relieves the defendant of liability. For example, suppose a defendant negligently blocks a road causing the plaintiff to make a detour in her automobile. While on the detour, an airplane hits the plaintiff's car, killing the plaintiff. The airplane was completely unforeseeable to the defendant, and thus he cannot be held liable for the plaintiff's death. The airplane was a superseding cause of the plaintiff's death.

Even great jurists have had difficulty articulating exactly what constitutes proximate cause. Although the law provides tests such as "foreseeability" and "natural, direct consequences," ultimately the issue of proximate cause is decided by people's sense of right and wrong. In the example where the defendant spills gasoline and does not clean it up, most people would agree that the defendant should be liable if a careless smoker accidentally ignites the gasoline, even if they could not articulate that the smoker was a foreseeable, intervening cause of the fire.

Defenses to Negligence Liability

Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty, and proximately caused the defendant's injury, the defendant can still raise defenses that reduce or eliminate his liability. These defenses include contributory negligence, comparative negligence, and assumption of risk.

Contributory Negligence

Frequently, more than one person has acted negligently to create an injury. Under the common-law rule of contributory negligence, a plaintiff whose own negligence was a contributing cause of her injury was barred from recovering from a negligent defendant. For example, a driver negligently enters an intersection in the path of an oncoming car, resulting in a collision. The other driver was driving at an excessive speed and might have avoided the collision if she had been driving more slowly. Thus, both drivers' negligence contributed to the accident. Under the doctrine of contributory negligence, neither driver would be able to recover from the other, due to her own negligence in causing the accident.

The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant where the plaintiff is also at fault. However, this doctrine often leads to unfair results. For example, even if a defendant's negligence is the overwhelming cause of the plaintiff's injury, even slight negligence on the part of the plaintiff completely bars his recovery. Also, the negligence of many defendants such as corporations, manufacturers, and landowners creates no corresponding risk of injury to themselves. In such cases the doctrine of contributory negligence, which can completely eliminate the liability for their negligence, reduces their incentive to act safely. As a result, courts and statutes have considerably weakened the doctrine of contributory negligence.

Comparative Negligence

Most states, either by court decision or statute, have now adopted some form of comparative negligence in place of pure, contributory negligence. Under comparative negligence, or comparative fault as it is sometimes known, a plaintiff's negligence is not a complete bar to her recovery. Instead the plaintiff's damages are reduced by whatever percentage her own fault contributed to the injury. This requires the jury to determine, by percentage, the fault of the plaintiff and defendant in causing the plaintiff's injury. For example, suppose a plaintiff is injured in an automobile accident and sustains $100,000 in damages. The jury determines that the plaintiff was 25 percent responsible for the accident and that the defendant was 75 percent responsible. The plaintiff will then be allowed to recover 75 percent of her damages, or $75,000.

Most states have adopted the "50 percent rule" of comparative negligence. Under this rule the plaintiff cannot recover any damages if her negligence was as great as, or greater than, the negligence of the defendant. This rule partially retains the doctrine of contributory negligence, reflecting the view that a plaintiff who is largely responsible for her own injury is unworthy of compensation. A minority of states have adopted "pure comparative fault." Under that rule even a plaintiff who is 80 percent at fault in causing her injury may still recover 20 percent of damages, reflecting the defendant's percentage of fault.

Assumption of Risk

Under the assumption of risk defense, a defendant can avoid liability for his negligence by establishing that the plaintiff voluntarily consented to encounter a known danger created by the defendant's negligence. Assumption of risk may be express or implied. Under express assumption of risk, persons agree in advance that one person consents to assume the risk of the other's negligence. For example, a skier who purchases a lift ticket at a ski resort usually expressly agrees to assume the risk of any injury that might occur while skiing. Thus, even if the ski resort negligently fails to mark a hazard on a trail resulting in an injury to a skier, the ski resort may invoke the assumption of risk defense in the skier's subsequent lawsuit.

Assumption of risk may also be implied from a plaintiff's conduct. For example, the defendant gives the plaintiff, a painter, a scaffold with a badly frayed rope. The plaintiff, fully aware of the rope's condition, proceeds to use the scaffold and is injured. The defendant can raise the implied assumption of risk defense. This defense is similar to the contributory negligence defense; in the above example, the defendant might also argue that the plaintiff was contributorily negligent for using the scaffold when he knew the rope was frayed.

The implied assumption of risk defense has caused a great deal of confusion in the courts because of its similarity to contributory negligence, and with the rise of comparative fault, the defense has diminished in importance and is viable today only in a minority of jurisdictions.

See: Alcohol; Automobiles; Good Samaritan Doctrine; Guest Statutes; Last Clear Chance; MacPherson v. Buick Motor Co.; Natural and Probable Consequences; Palsgraf v. Long Island Railroad Company; Product Liability; Rescue; Rylands v. Fletcher; Strict Liability.

In law, the failure to do something that a reasonable person of ordinary prudence would do in a certain situation or the doing of something that such a person would not do. Negligence may provide the basis for a lawsuit when there is a legal duty, as the duty of a veterinarian, to provide reasonable care to patients and when the negligence results in damage to the patient.

• contributory n. — a defense against a negligence suit, in which evidence is presented that the client contributed to the unsatisfactory outcome of a case by being negligent himself/herself, e.g. by not returning the animal for further treatment soon enough.

The failure to observe, for the protection of another person, the degree of care and vigilance that the circumstances demand, whereby such other person suffers injury.

• Crimes, Criminals, and Civil Offenders - negligence: failure to act in a reasonably prudent manner to protect interests of others, often encompassing recklessness

For other uses, see Negligence (disambiguation).

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Negligence
Duty of care · Standard of care Proximate cause · Res ipsa loquitur Calculus of negligence Rescue doctrine · Duty to rescue
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v d e

Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.^[1] The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.

According to Jay M. Feinman of the Rutgers University School of Law, "The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause to other people." ^[2]

"those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision." Fletcher v Rylands ([1866] LR 1 Ex 265)

Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.^{[citation needed]}

Contents 1 Elements of negligence claims 1.1 Duty of care 1.2 Breach of duty 1.3 Factual causation (Direct Cause) 1.4 Legal causation or remoteness 1.5 Harm 2 Damages 3 Procedure in the United States 4 See also 5 Footnotes 6 References 7 External links

Elements of negligence claims

Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes (see Element (criminal law)). An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, assume that a particular tort has five elements. Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim.^{[citation needed]}

Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. "The broad agreement on the conceptual model", writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice", he goes on to warn, "several varieties of confusion or conceptual mistakes have sometimes occurred."^[3]

Duty of care

Main article: Duty of care

A decomposed snail in Scotland was the humble beginning of the modern English law of negligence

The case of Donoghue v. Stevenson^[4] [1932] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. The Pursuer, Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer, a certain Stevenson in Scotland. While drinking the drink, Donoghue discovered the remains of an allegedly decomposed slug. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Andrew Smith.

In his ruling, justice Lord MacMillan defined a new category of delict (the Scots law nearest equivalent of tort), (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not harm thy neighbour.' He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

In England the more recent case of Caparo v. Dickman [1990] introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

Breach of duty

See also: Breach of duty in English law

In Bolton v. Stone the English court was sympathetic to cricket players

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone,^[5] a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health,^[6] the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.

• United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947)

For the rule in the U.S., see: Calculus of negligence

Factual causation (Direct Cause)

Main article: Causation (law)

For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, the accused party's breach of the duty owed to the injured party. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.

See also: Causation in English law and Breaking the chain

Legal causation or remoteness

Negligence can lead to this sort of accident - a train wreck at Gare Montparnasse in 1895.

Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J., "liability in an indeterminate amount for an indeterminate time to an indeterminate class."^[7] It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible? For instance, in Palsgraf v. Long Island Rail Road Co.^[8] the judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell.^[9] Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.^[10]

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.

Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in the Wagon Mound (No. 1).^[11] The Wagon Mound was a ship in Sydney harbour. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf.

The UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.

In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v. Coffey.^[12] The wife of a policeman, Mrs Coffey suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.

Harm

Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss. It means something more than pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof.^{[citation needed]}

Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.

The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.

The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury), or reputational (in a defamation case).

In English law, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.

Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.

A claimant who suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress alone – even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.^[13]

Damages

Main article: Damages

Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person". The test is self-explanatory: would a reasonable person (as determined by a judge or jury) be damaged by the breach of duty. Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.

Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

Types of damage

• Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one's car.
• General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car accident. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.
• Punitive damages - Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. Therefore, punitive damages are not obtainable in a negligence case. Punitive damages are awardable only in cases where a defendant has been found liable for intentional, reckless or malicious wrongdoing, such as fraud, defamation or false imprisonment.

Procedure in the United States

The plaintiff must prove each element to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment. The ability to resolve a negligence case without trial is very important to defendants. Without the specific limits provided by the four elements, any plaintiff could claim any defendant was responsible for any loss, and subject him to a costly trial.^[14]

The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the "finder of fact" (jury) to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of the disputed facts, if any, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.

On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the disposition of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his case.

See also

• Carelessness
• Criminal negligence
• Intentionality
• Malpractice
• Medical negligence
• Mens rea
• Neglect
• Negligence in English Law

Footnotes

1. ^ "Negligence". Encyclopædia Britannica. Meriam Webster. http://www.merriam-webster.com/dictionary/negligence. Retrieved 6/12/2011. 
2. ^ Feinman, Jay (2010). Law 101. New York: Oxford University Press. ISBN 978019539513-6. 
3. ^ Deakin, Tort Law, 218
4. ^ Donoghue v. Stevenson [1932] AC 532
5. ^ Bolton v. Stone, [1951] A.C. 850
6. ^ Roe v Minister of Health (1954) 2 AER 131
7. ^ Ultramares Corp. v. Touche(1931) 255 N.Y. 170, 174 N.E. 441
8. ^ Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99
9. ^ Interestingly, the plaintiff's physical injuries were minor and more likely caused by a stampede of travelers on the platform rather than the concussion of the exploding fireworks. These details have not, however, stopped the case from becoming the source of extensive debate in American tort law.
10. ^ She could have sued the man or the conductor himself, but they did not have as much money as the company. Often, in litigation, where two defendants are equally liable but one is more able to satisfy a judgment, he will be the preferred defendant and is referred to as the "deep pocket."
11. ^ Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1966] 2 All E.R. 709
12. ^ Jaensch v. Coffee (1984) 155 CLR 578
13. ^ See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
14. ^ The breadth of negligence is often associated with an "in terrorem effect"

References

• Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin's Tort Law. Oxford University Press. ISBN 0199257116. 

External links

• Britannica 1911's account of negligence: an interesting historical read, preceding the era of Buick Motor and Donoghue v. Stevenson.

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