Negligence

What is negligence? Good question! Let's explain what negligence is, how it is used in a lawsuit (such as a negligence suit for personal injury, torts, auto accidents, slip and fall, medical malpractice, attorney malpractice, and many other legal situations), how one goes about proving negligence, common defenses used to disprove it, and common misspellings of negligence.

What Is Negligence?

There are many definitions that help to answer "what is negligence?", but we prefer the the following ones that make it very easy to understand by everyone. Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of "negligence" the careless person will be legally liable for any resulting harm. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury, during informal settlement talks and up through a trial in a personal injury lawsuit. Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. We say that the negligent defendant failed to act as an ordinary, prudent person would have under the circumstances. For example, an ordinary, reasonable person can travel down the Interstate, which has a posted speed limit of 65 miles per hour, at 65 miles per hour. However, if dense fog is present, the same ordinary, reasonable person would be expected to reduce his/her speed of travel. Suppose someone plows into your car while she was driving at 55 or 45 or 35? Would that be what the standard "ordinary reasonable person" should have done?

How Is Negligence Used In A Lawsuit?

Negligence is a cause of action is a lawsuit. If someone injures you because they failed to act as a reasonable or prudent person would, you may then file a suit against them for any damages that you have suffered. The key to obtaining any relief in a court is the ability to file suit under a cause of action which the court recognizes. Every court in the United States, and virtually the entire world, recognizes the legal theory of negligence, and will hear a case that is based upon it. Let's say for install that you slipped in a grocery store on some spilled milk that had been there for hours. You would say that the store negligently failed to clean up the spilled milk, and that led to your injuries such as broken bones, torn muscles, or any other imaginable bodily hard. You would file suit in the proper court against the grocery fall for the slip and fall case, and your cause of action (ticket into the legal system) would rest upon a negligence claim. Makes sense? Great!

How Do You Prove Negligence?

The plaintiff will prove that the defendant is guilty of negligence by proving separate elements of his case. The elements of a cause of action in tort for negligence are: (1) a duty to use ordinary care; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury and (4) resulting damage.

(1) Duty- For the duty element of negligence we simply say that the defendant had a duty to behave as a reasonable person would under the circumstances. We also ask if the defendant owed such a duty to this plaintiff. A common example where the plaintiff fails to prove the duty element can be explained by the "bystander rescue" principle. For instance, if you, the innocent bystander, see a person drowning in a frozen lake, the law does not recognize a duty for you to rescue him. There simply is no duty in this example, and the defendant would prevail on the duty element.

(2) Breach of that duty- The second element of negligence requires that the defendant's breach of its duty by failing to conform to the required standard of care.  A breach of duty occurs if the Defendant's conduct creates an unreasonable risk of harm to others.  It is an objective test:  whether a reasonable person would have conducted himself as the defendant did. It is not a subjective test.

(3) Proximate cause- The third element of negligence is that breach of duty is both the cause in fact and the legal or proximate of the plaintiff's injuries by the defendant. The plaintiff can show that the breach of duty is the cause in fact if but-for defendant's conduct, the plaintiff would not have been harmed. To show causation a plaintiff also must prove that Defendant's conduct was the proximate cause of the harm alleged by the plaintiff. Simply put, you must prove that the defendant's action or inaction led to the damages suffered, and that there were no intervening causes.

(4) Damages- The plaintiff must simply prove that he suffered actual damages from the defendant's negligence. Common damages includes: lost wages, pain and suffering, medical expenses, loss of consortium, and others.

Common Negligence Defenses

The best defenses for a negligence case simply take out one of the "legs" in the elements. If the plaintiff does not prove any of the four elements, they will not prevail in the case. Another way for the defendant to prevail in the lawsuit is to eliminate or lower his liability under the theories of contributory negligence, comparative negligence, or assumption of the risk.

With contributive negligence, the defendant can limit his liability by proving that the plaintiff (or any other third party) was also at fault. In other words, the plaintiff recognizes that they may be at fault, but the plaintiff or others also contributed to the damages suffered by the plaintiff. In some states this can actually bar the plaintiff from recovering anything. To rid our laws of this archaic practice, most states have taken on some form of comparative negligence which is basically the same as contributory negligence, but it simply reduces the plaintiff's damages by the percentage of her fault. With assumption of the risk, the defendant is seeking to prevail in the case by proving that the defendant voluntarily consented o encounter a known risk. In other words, the plaintiff knew of the risk, understood it, but acted anyway.