Negligence

Negligence is a legal concept usually used to achieve compensation for accidents and injuries. Negligence is a type of tort or delict and a civil wrong, but can also be used in criminal law. Negligence means conduct that is culpable because it misses the legal standard required of a reasonable person in protecting individuals against foreseeably risky, harmful acts of other members of society. Negligent behavior towards others gives them rights to be compensated for the harm to their body, property, mental well-being, financial status, or relationships. Negligence is used in comparison to acts or omissions which are intentional or willful. The law of negligence at common law is one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of this discussion.

Elements of Claim

To prove a claim of negligence, the plaintiff must prove the following:

1. The defendant owned the plaintiff a duty of care to act as a reasonable person under the circumstances;
2. The defendant breached that duty of care;
3. The breach of duty was the cause in fact of the plaintiff's injury;
4. The breach of duty was the proximate cause of the plaintiff's injury; and
5. As a result of the breach of duty, the plaintiff suffered damages.

Duty of Care

In tort law, a duty of care is a legal obligation imposed on an individual requiring that they exercise a reasonable standard of care while performing any acts that could foreseeably harm others. For an action in negligence, there must be an identified duty of care in law.

Duty of care may be considered a formalization of the implicit responsibilities held by an individual towards another individual within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. Doctors will be held to reasonable standards for members of their profession, rather than those of the general public in cases related to their fields.

Standard of Care

The standard of care is the degree of prudence and caution required of an individual who is under a duty of care. A breach of the standard is necessary for a successful action in negligence. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person. It is described as whether the individual proceeded with such reasonable caution as a prudent man would have exercised under such circumstances.  In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent manufacturer of a product, or the reasonably prudent professional in that line of work.

Reasonable Person

The reasonable man or reasonable person standard is a legal fiction that originated in the development of the common law. The "reasonable person" is a hypothetical individual who is intended to represent a sort of "average" citizen. The ability of this hypothetical individual to understand matters is consulted in the process of making decisions of law. The question, How would a reasonable person act under the same or similar circumstances performs a critical role in legal reasoning in areas such as negligence and contract law.

Duty to Licensee

A licensee is a term used in the law of torts to describe a person who is on the property of another, despite the fact that the property is not open to the general public,[verification needed] because the owner of the property has allowed the licensee to enter. The status of a visitor as a licensee (as opposed to a trespasser or an invitee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

Where licensees are present, activities conducted on the land by or at the behest of the owner of the land must be conducted with the care that a prudent person would show. A duty to warn arises if there is a harmful condition on the land that is hidden from the licensee, so long as the landowner knows of this condition. The licensee falls between the anticipated or discovered trespasser and the invitee on the sliding scale of tort liability assessed to landowners. Whereas the trespasser needs to be protected from known conditions capable of causing death or serious injury, the licensee must be warned of all known dangers. However, unlike an invitee, a licensee has no standing to sue for dangerous conditions unknown to the property owner.

Historically, emergency workers — police and firefighters — have been considered licensees. However, they are barred from recovering from injuries caused by inherent risks of their jobs. Generally such injuries are instead covered by worker's compensation.

Duty to Invitee

In the law of torts, an invitee is a person who is invited to land by the possessor of the land as a member of the public, or one who's invited to the land for the purpose of business dealings with the possessor of the land. The status of a visitor as an invitee (as opposed to a trespasser or a licensee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

The property owner has a duty to make the property safe for the invitee, which includes conducting a reasonable inspection of the premises to uncover hidden dangers. The property owner also has a duty to warn the invitee of hazardous conditions that can not be fixed. Furthermore, property owners assume a duty to rescue an invitee who falls into peril while visiting the property. If an independent contractor hired by the landowner injures an invitee (intentionally or through negligence), the owner can be held vicariously liable. This represents the broadest duty of care owed to any class of visitors to the property.

It should be noted that a property owner who selectively limits entry to the property - to paying customers, to a set number of people, or even in a discriminatory fashion - is nonetheless opening the property to invitees, so long as the property owner holds the property open to some segment of the general public.

Duty to Trespasser

A trespasser is a person who is trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional. At the same time, the status of a visitor as a trespasser (as opposed to an invitee or a licensee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

With respect to the duties owed to trespassers, there are two types of trespassers to consider. First, there is the undiscovered trespasser, to whom the property owner owes no duty whatsoever. Second, there is the anticipated or discovered trespasser. To those parties, the landowner owes a duty of common humanity — a duty to warn them of deadly conditions on the land which would be hidden to them, but of which the property owner is aware. A warning sign at the entrance to the land will suffice for this purpose. However, a property owner is under no duty to ascertain hazards on his property, and cannot be held liable for failing to discover a deadly hazard which injures a trespasser.

Furthermore, an adult trespasser who is injured while on a defendant's property cannot sue under a theory of strict liability, even if the landowner was engaged in ultrahazardous activities, such as the keeping of wild animals, or the use of explosives. Instead, the trespasser must prove that the property owner intentionally or wantoning injured the plaintiff to recover. The exception is a child who is trespassing to play on ultra-hazardous items on the land. Since these trespassers are considered "anticipated" they are excepted under the doctrine of attractive nuisance.

Breach of Duty

Once it is established that the defendant owed a duty to the plaintiff/claimant, the second question is whether the duty was breached. The test is both subjective and objective. If the defendant actually realized that the plaintiff/claimant was being put at risk, taking the decision to continue that exposure to the risk of injury breaches the duty. If the defendant did not actually foresee that another might be put at risk, but a reasonable person in the same situation would have foreseen the possibility that another might be injured, there will be a breach.

Cause In Fact

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, my breach of duty. Even more precisely, if a breaching party materially increase the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

The but-for test often gives us the right answer to causal problems, but sometimes not. Two difficulties are immediately obvious. The first is that under the but-for test, almost anything is a cause. But for a tortfeasor's grandmother's birth, the relevant tortious conduct would not have occurred. But for the victim of a crime missing the bus, he or she would not have been at the site of the crime and hence the crime would not have occurred. Yet in these two cases, the grandmother's birth or the victim's missing the bus are not intuitively 'causes' of the resulting harm. This often does not matter in the case where cause is only one element of liability, as the remote actor will most likely not have committed the other elements of the test. However, this situation can arise in strict liability situations.

Proximate Cause

Proximate cause or legal causation is the active efficient cause that sets in motion a train of events which brings about a result without the intervention of any new force starting and working actively from a new and independent source. The cause which brings about the loss is the proximate cause, without the intervention of any other cause.  Factual causation is distinguished from legal causation to avert the danger of defendants being exposed to liability in an indeterminate amount for an indeterminate time to an indeterminate class. 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' or not a 'proximate cause' of another's harm if one would 'never' reasonably foresee it happening.

For example, if a person meets with an accident whilst going for hunting. He could not move and was lying in the chill weather overnight. He died. The proximate cause is "accident" If an individual in a similar situation, fortunately, moved to a hospital, dies of malaria which was contracted during his stay in the hospital, the proximate cause is Malaria and not accident. He might not have been moved to the hospital if he had not met with an accident, still, the proximate cause of Malaria and not accident. The intervening cause has brought the result , viz., death.

Damages

Even though there is breach of duty, the negligence suits will not be successful unless there is provable injury. The plaintiff must have suffered loss or damage flowing naturally from the breach of the duty of care if damages are to be awarded. The damage may be physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss of earnings consequent on a personal injury), reputational (e.g. in a defamation case), or in relationships where a family may have lost a wage earner through a negligent act. Emotional distress has been recognized as compensable in the case of negligence. The state courts of California allowed recovery for emotional distress alone — even in the absence of any physical injury.

Contributory Negligence

Contributory negligence is a common law defense to a claim based on negligence, an action in tort. It applies to cases where plaintiffs have, through their own negligence, contributed to cause the damages they incurred as a result of defendants' negligence. For example, a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly. Contributory negligence is distinguishable from contribution, which is a claim brought by one or more defendants seeking to have a third party pay some or all of any money damages awarded to a plaintiff.

Scope of the Defense

At common law, contributory negligence was originally an absolute defense. If a defendant successfully raised the defense, he would be able to avoid liability for the tort completely. This could lead to injustice where the negligence of a plaintiff or claimant was slight. The defense of contributory negligence would prevent them from recovering any damages at all.

Most jurisdictions in the United States have modified the doctrine, either by court decision or by legislation and have accordingly changed the name to comparative negligence wherein, rather than awarding no damages at all, the jury reduces the compensation to be awarded by a percentage reflecting the degree to which the plaintiff's negligence contributed to cause the damages. Maryland, Alabama, North Carolina, Virginia, and the District of Columbia retain contributory negligence as a complete defense to negligence.

Burden of Proof

In some jurisdictions the defendant has to prove the negligence of the plaintiff or claimant; in others the burden is on the plaintiff or claimant to disprove their own negligence. The tortfeasor may still be held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine).

Applicability

Contributory negligence is generally a defence to tort claims arising out of negligence of the defendant. In contrast, where the defendant's conduct amounts to malicious or intentional wrongdoing as opposed to ordinary negligence the defence does not apply.

Comparative Negligence

In the United States, comparative negligence is a partial defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the damages. When this defense is asserted, the fact-finder, usually a jury, must decide the degree to which the plaintiff's negligence versus the combined negligence of all sued defendants contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence, which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.