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DANA B. TASCHNER

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Negligence

 
 

In law, negligence is a type of tort or delict that can be either criminal or civil in nature.

Criminal negligence

In the realm of criminal common law, criminal negligence is a legal term of art for a state of mind which is careless, inattentive, neglectful, willfully blind, or reckless; it is the mens rea part of a crime which, if occurring simultaneously with the actus reus, gives rise to criminal liability. Some distinguish recklessness from negligence; recklessness is a 'malfeasance' that increases the danger of an act occurring; whereas criminal negligence is a 'misfeasance or 'nonfeasance,'merely allowing otherwise avoidable dangers to manifest. This is an example of the difference between a general intent crime and a specific intent crime with recklessness being more specific than criminal negligence. In some cases this 'nonfeasance' can rise to the level of willful blindness where the individual intentionally avoids confronting a situation that no reasonable person would ever allow to occur. Gross criminal negligence is behaviour which involves a "wanton disregard for human life." Of course, in all these cases if the actus reus or bad act never occurs then there is no crime as both elements are necessary under the criminal common law to sustain a guilty conviction.

Usually the punishment for criminal negligence, criminal recklessness, criminal endangerment, willful blindness and other related crimes is imprisonment, unless the criminal is insane (and then in some cases the sentence is indeterminate). Examples of criminally negligent crimes are criminally negligent homicide and negligent endangerment of a child.

Negligence in private law

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

Under civil common law, negligence is an ingredient of many non-intentional torts or wrongs that one individual suffers because of the nonfeasance, misfeasance or malfeasance of another. As opposed to the common law tradition of most Anglo-American jurisdictions, in civil law legal systems (such as continental Europe, Quebec and Puerto Rico) negligence is classified as a form of extra-contractual responsibility called a quasi-delict (in distinction to the more willful delicts) within the conceptual framework of the law of obligations. The rules and elements are not the same as those set forth below under the Anglo-American common law tradition.

A lawsuit grounded in a claim of negligence might be brought, for example, by someone injured in an auto accident against another driver who he felt caused the accident by being reckless or irresponsible.

Note: unless otherwise stated, this rest of this section refers to negligence under common law (not criminal negligence) in the common law as practiced in most of the jurisdictions of the United States .

Negligence in common law countries

Under law, negligence is usually defined in the context of jury instructions wherein a judge, in fitting language, tells the jury that a party is to be considered negligent if they failed to exercise the level of care that a reasonable person, possessed of the same knowledge, would have exercised under the same circumstances. In most jurisdictions, it is necessary to show first that a person had a duty to exercise care in a given situation, and that they breached that duty.

In order to prove negligence, it is not necessary to prove harm, but in order for a cause of action to rest in tort, harm must be proven. Hence, it would be meaningless to sue someone for negligence if no harm resulted. Conversely, it is not enough that a harm was done. In order for the harm to be compensable in a negligence lawsuit, the defendant must be shown to have been negligent, and it must be demonstrated that his negligence was the proximate cause of the harm felt by the plaintiff.

The law holds that any reasonable person would, if able, follow the law. Consequently, as a matter of law, a person may be declared by a court liable as a matter of law (" negligence per se") if it is proven that they broke the law. For example, someone injuring another in an auto accident may be found negligent per se in a civil suit arising from the accident if they were convicted in criminal court of driving while intoxicated at the time of the accident.

It is often observed by practitioners in tort law that prospective plaintiffs who have a poor understanding of the foregoing principles will desire to see a significant monetary penalty applied as a result of the outrageousness of the defendants' act. They may feel that they "deserve" an award all out of proportion to their actual misfortune, because of the severe nature of the defendants' carelessness. This is a mistaken view of the authority of the law. Damages are awarded in proportion to the scope of the harm done, following the principle of restitutio in integrum (literally 'restoration to the original condition'). Thus the severity of the negligence is irrelevant; "But he was so careless, he could have killed me!" falls on deaf ears in American courts. Still, some negligent acts are recognized as a matter of law to be so egregious as to merit financial penalty over and above actual damages, in order to reform the conduct of a malicious or callously indifferent defendant, and, by example, others similarly disposed. This is the purpose of punitive damages. Such acts are rare indeed, well defined in the law of applicable jurisdictions, and limited to the exact conditions of the law under which they may be awarded.

Only when the severity of negligence rises to an extreme level (and then, only when harm results from it) might it meet the standards required under laws providing for punitive damages.

Components of a negligence cause of action

A negligence lawsuit involves many components which need to be considered before the success of the case can be determined. Proving negligence is far more complicated than it may seem.

When considering a negligence cause of action there are six primary elements which need to be viewed and covered thoroughly: (1) duty, (2) breach of duty, (3) causation, (4) damage, (5) remoteness and (6) defenses. Once this has been done an appropriate award of damages may be considered.

Duty

(1) The duty element is the legal requirement that the person being sued for negligence must adhere to a standard of conduct in protecting others from unreasonable risk of harm. The duty element may be considered a formalisation of the implicit responsibilities held by an individual towards another individual within society.

Different duties apply to different people.

Parents have a duty to care for their children.

Landlords have a duty to keep a residence habitable for their tenants.

Each duty is applicable to the pertinent responsibility at hand.

Professionals are held to a higher standard of care than the average person in society. These people take oaths in their professions and need to maintain that level of duty when they perform their professional activities.

Breach of duty

(2) Breaching that duty is the second element to a negligence lawsuit. The question to be asked is: Would a reasonable person in a similar situation have done the same thing as the person being sued? To come to that conclusion both objective and subjective standards need to be considered.

The objective standard of breach of duty only considers a hypothetical person and what their reasonable behaviour might be.

The subjective standard considers the actual person being sued and if the jury thinks they acted reasonably in the matter at hand.

Causation

(3) The causation of negligence is the third critical element of the lawsuit. Both actual cause and proximate cause are considered. Actual cause asks the question of whether the person being sued, the defendant, was the actual cause of injuries sustained by the person initiating the lawsuit, the plaintiff. Proximate cause looks at the issue of foreseeability. When considering the event that has happened, it is asked whether or not the injuries sustained were foreseeable or too remotely connected to the incident to even consider.

Damage

(4) Plaintiffs must have suffered damage - either physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss consequent on a personal injury) - from the negligent act if they are to have a cause of action against the tort feasor (note, however, under English law at least, and derivatives thereto, no cause of action arises save for in a number of 'special' and clearly defined circumstances where the damage is purely financial).

Remoteness

(5) Only reasonably foreseeable damage may be recovered by an action in negligence. This means that at the time the tort feasor committed the negligent act, it must have been reasonably foreseeable that damage of the same kind as the plaintiff suffered would ensue from it. The extent of the damage need not be foreseeable; and it matters not what the plaintiff in fact foresaw - the test is a purely objective one.

Defences

(6) Notwithstanding that the plaintiff can prove elements (1) - (5) above, the tort feasor may have a complete or partial defence to the tort. Where the defence is complete, the plaintiff will be denied any remedy - i.e. damages (on damages see below) - by the Court. Where the defence is partial, the plaintiff's award of damages will be reduced to the extent of the partial defence.

A common complete defence is where the tort feasor proves that the plaintiff consented either expressly or impliedly to the risk of damage. Another is where tort feasors can show that by a notice, sign or otherwise, they have validly excluded liability for the damage the plaintiff is seeking a remedy for.

Contributory negligence is an absolute defense under the common law. This is where the tort feasor proves that the plaintiff acted negligently and that this negligence contributed to the damage the plaintiff suffered from the tort feasor's negligent act. A simple example is where D's negligent driving caused P damage, but P's negligent driving also was a cause of that damage in part, in that, but for P's failure, his injuries would not have taken place or would not have been as severe as they in fact were. Where contributory negligence was proved, under the common law, the plaintiff would recover nothing. This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing of a more egregiously responsible defendant. In most common law jurisdictions it has been replaced judicially or legislatively by the doctrine of comparative negligence (often still referred to as contributory negligence), under which the court will reduce the plaintiff's damages by the degree to which the plaintiff's own negligence contributed to his loss.

Damages

(7) Where plaintiffs prove (1) - (5) above, and the tort feasor cannot prove a complete defence, they may recover damages (money) for their loss. It is the court that decides the amount of damages to be awarded.

Tortious damages are, in general, compensatory and not punitive in nature. This means that the award decided upon should be reflective only of the plaintiffs' actual loss - it should aim to compensate them fully for it, but not to punish the tortfeasor. The award should be sufficient so as to put the plaintiffs back in the position they were before the tort was committed, but must not go any further, otherwise the plaintiffs would actually benefit from the tort.

The plaintiff's award of damages may be comprised of the following heads of damage:

Special damages - losses suffered from the date of the tort up until the date of trial and which can be precisely quantified in monetary terms.

General damages - losses that cannot be quantified exactly in monetary terms (the actual pain suffering and loss of amenity caused by the negligent act come under this head of general damages), as well as expected future losses from the date of trial (e.g. loss of earnings).

In certain limited cases the court may depart from the compensatory principle relayed above and award punitive (also known as exemplary) damages in addition to general and special damages. This is usually done where the tort feasor intentionally committed the tort for economic gain. The tort feasor is then duly punished in this way in the hope that doing so will deter similar actions in the future both by the defendant and others.

Where the plaintiff's general or special damages are negligible or wholly unquantifiable the court may award nominal damages.

Legal procedures in negligence lawsuits

While most lawsuits are settled when a negligence lawsuit goes to trial, the judge will determine what the defendant's duty was to the plaintiff as a matter of law using the standard of reasonableness. In the United States , if it is questionable what a reasonable person would do, a jury picked by the adversaries (plaintiff and defendant) will consider the facts and render a decision as well as determine the quantum of damages.

Sometimes the trier of fact will be the judge - this has been the case in England since the 19th century and is generally the case in the other Commonwealth countries.

Procedures and law in civil law jurisdictions

There are some differences in the law of negligence in civil law jurisdictions, but the basic rules above are also applied in these delict cases. In civil law jurisdictions the procedure is more akin to an investigation with investigative judges will interview all parties and witnesses and then prepare reports to be submitted to a panel of judges for final decision. That decision may also be appealed several levels through a judicial hierarchy.


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