Negligence

In the law, the term “negligence” refers to a failure of a person or entity to exercise a level of care necessary to protect others, whether in interest, or from physical harm, from actions or conditions that may cause them harm. Negligence most often comes into play concerning a person’s or entity’s actions, however it may also be an omission or failure to act when there is a duty. To explore this concept, consider the following negligence definition.

Definition of Negligence

Noun

1. Conduct that falls beneath the standard of behavior either generally expected in society, or established by law.
2. The failure to exercise a degree of care or caution necessary to protect others from harm.

Origin

1300-1350   Middle English necligence

Elements of Negligence

There are a number of factors to consider in determining whether an individual or entity has acted negligently. The first element of negligence is whether the party’s acts or omissions lack the degree of care that would be taken by any reasonable person in the same situation. The second element of negligence is whether there was a predictable likelihood that the party’s conduct could result in harm. Following these considerations, there are additional elements of negligence required to prove a claim of negligence. If a plaintiff fails to prove any one of these elements, he loses the entire claim:

Duty

Generally speaking, all people have a duty to all others at all times to exercise reasonable care for their physical safety, as well as the safety of their property. This does have limitations, however. A common analogy is the homeowner who digs a deep hole in his fenced back yard and, because he knows the hole is there, does not put up a barrier or warning about the hole. If a guest then fell into the hole, the homeowner would be liable, as he has a duty to keep his guest safe from injury on his property. If a burglar jumped the fence at night and fell into the hole, the homeowner would not be held liable for his injuries, as he has no duty to protect this criminal from harm in the commission of his crime.

Affirmative Duty

Certain relationships create a duty where none would otherwise exist. Such duties often occur in professional or commercial settings. For example, a school has a duty to protect its students, a commercial establishment has a duty to protect its customers, and a restaurant has a duty to provide safe food to its customers. Certain professionals have a built-in duty to protect others, even to the point of rendering aid to others to keep them safe. Such professionals include police officers, EMTs and paramedics, firefighters, doctors, and the like.

Rendering Aid

While all people have a duty to avoid taking actions that may endanger others, they do not generally have a duty to provide assistance to protect others from being harmed by an unrelated cause. For example, a woman who sees a person drowning at the public pool has no duty to jump in and save that person, though the lifeguard on duty does. Another example would be an off duty paramedic who witnesses an automobile accident. While other bystanders have no duty to render medical aid, the paramedic does, even when he is off the clock.

Breach of Duty

After establishing that the defendant had a duty to protect the plaintiff, it must be shown that he breached that duty. This can happen in two ways: (1) by knowingly exposing the plaintiff to the risk of harm or injury, and (2) by failing to recognize a significant risk of harm or injury which any other reasonable person would have recognized.

Causation

In order for a person to be held liable for negligence, it must be shown that his act or failure to act caused the plaintiff’s loss or injury. This is often the most complex element of negligence to prove. For example, Bob negligently causes an automobile accident in which another driver was forced into a utility pole and severely injured. Bob would be held liable for the other driver’s injury and damage to his car, as his actions were the direct cause of the injuries and damage.

The damage to the utility pole also caused a power outage which caused Mary’s alarm clock to fail. Should Bob be held liable if Mary, who was late to work, gets fired from her job? This is referred to as proximate cause, which is a thorny issue, as the courts must consider what is fair, and at what point does it become unfair or unreasonable to hold a person liable for the results of his actions.

Damages

Once breach of duty and causation have been established, it becomes necessary to determine a monetary value for the injury or damages. In some cases, such as contract cases, this is as simple as awarding the plaintiff the value he has invested in the contract. The award in any civil lawsuit is intended to make the plaintiff whole, or to put him back in the position he was in before the negligent act, therefore proof of the amount of the plaintiff’s damages must be provided in the form of receipts, cancelled checks, or other evidence. In certain cases, however, it is appropriate for the court to award a monetary amount to cover such things as medical costs, property damages, and pain and suffering.

Gross Negligence

When negligent conduct is seen as extreme when compared to regular negligence, it is considered to be “gross negligence” in the eyes of the law. Gross negligence is the conscious, voluntary, reckless disregard for the safety or lives of other people. Grossly negligent conduct is so extreme that it appears to be an intentional violation of, or indifference to, the right of others to be safe.

While claims of regular negligence can sometimes be difficult to prove, gross negligence rises to the level of being clearly unreasonable or dangerous. Examples of grossly negligent acts may include:

• A driver speeding through a busy parking lot where pedestrians are walking hits a shopping cart, forcing it into a man, resulting in serious injuries
• A provider of home care fails to show up as scheduled, and giving food and water to his elderly patient only once in three days
• A nurse gives an injection without first checking the patient’s wrist band, giving it to the wrong patient, resulting in a severe allergic reaction
• A surgeon amputates the wrong leg of a patient
• A surgeon leaves an instrument in a patient

Criminal Negligence

While the standard of civil negligence, whether regular or gross, is the defendant’s failure to act in the way another reasonable person would act in the same situation, the standard of criminal negligence rises to include the defendant’s mental state at the time of the act or omission. To prove criminal negligence, it must be shown that the defendant failed to perceive or recognize a substantial risk of injury or damages in actions that are contrary to the regard for human life, or that show an obvious indifference to the consequences of his actions. Criminal charges for negligence are most often the result of acts that result in the death of another party.

For example, Sally and John leave their children, ages 7 and 9, at home while they go wood cutting. The children find John’s revolver in his nightstand drawer and decide to play with it. Their young son ends up shooting his older sister, killing her. John may face charges of criminal negligence as, while the act of leaving the children home alone did not create a high risk of death, the act of leaving an unsecured, loaded firearm within reach did.

Medical Negligence

When a medical professional fails to provide care to the standard expected by other medical professionals in the same situation, it is considered to be medical negligence. Such negligence is the primary basis for allegations of medical malpractice. Medical negligence requires proof of the same elements as regular negligence: duty, breach of duty, causation, and damages. The difference is that physicians and other medical professionals have a higher duty of care to their patients.

Causation, or proof of injury, may include physical effects of the treatment rendered by the physician, or the failure to provide treatment that another prudent physician would have deemed necessary in the same circumstances. Injuries due to medical negligence may also include emotional or psychological injury. Causation is a hotly disputed issue in any medical negligence or malpractice lawsuit, as medical professionals often allege that the patient’s injuries were the result of other factors not related to the care provided by the professional.

Professional Negligence

Professional negligence may occur in a situation in which an individual has represented himself as having greater skills and abilities than the average person. For example, a person claiming to be a plumbing contractor would be assumed to have greater skills in plumbing than a neighbor who has a bit of experience tinkering with his own plumbing.

Professionals, such as contractors, accountants, architects, and attorneys, have a duty to provide services to their clients to the level of other competent professionals in the same field. Losses, damages, or injuries sustained by a client due to a professional’s failure to provide that level of skill and education may be considered professional negligence.

For example, Mary hires an attorney to file a personal injury lawsuit after she was involved in a car accident. The attorney failed to file the lawsuit within the statute of limitations, and Mary was left with no rights to recover damages for her injuries. Mary then hired another attorney to assist her with a claim of professional negligence against the first attorney, who had acted negligently in handling Mary’s claim.

Suing for Negligence

Any person or entity can sue another for negligent conduct. Most employ an attorney with experience in the specific area of law that pertains to the act, such as personal injury, employment law, medical malpractice, and others. A lawsuit for negligence begins with the filing of a Complaint and Summons with the court. The Complaint must explain in detail the relationship between the parties, the act or failure to act of the party being sued (the “defendant”), the injuries or damages sustained as a direct result of the defendant’s actions, and the specific award sought.

A copy of the Complaint and Summons must be personally served on the defendant by an individual not involved in the suit, such as a professional process server, the constable or sheriff, or even a friend. The defendant then has the opportunity to file an Answer addressing the issues in the Complaint. The civil lawsuit moves forward from that point with discovery, hearings, settlement conferences, and perhaps a trial. Civil lawsuits may take anywhere from weeks to years to come to a conclusion, depending on the issues involved.

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Discovery – The pre-trial efforts of each party to obtain information and evidence.
• Liable – Responsible by law; to be held legally answerable for an act or omission.
• Omission – The act of excluding or leaving something out; a failure to do something, especially something for which there is a moral or legal obligation to do.