Chapter 20: Negligence
Tort law establishes standards for the
care that people must show to one another. Negligence is the
conduct that falls below this standard. Negligence law is
concerned with paying victims for the injuries that have been
caused by someone else's conduct.
Elements of Negligence Negligence
applies to many kinds of wrongful conduct. Four elements must
exist for a plaintiff to win a negligence action—duty,
breach of duty, causation, and damages. The plaintiff must
prove all of these elements in order to be successful in a
Duty and Breach Everyone
has a general duty to exercise reasonable care toward other
people and their property. If a person acts unreasonably,
he or she has breached the duty of care. In order to judge
whether or not a person's conduct is reasonable, the law asks:
Would a person of average intelligence and general regard
for others have acted in the same way? If the answer is no,
then the person's behavior was unreasonable. The law assumes
that reasonable people do not break the law. Certain professionals,
such as doctors, pilots, and plumbers, are held to the standards
of reasonably skilled professionals in their field. Even minors
are liable for the torts they commit. However, when deciding
the reasonable conduct of a minor, the law usually compares
a minor's conduct with other individuals of the same age,
intelligence, and experience.
order to prove causation, there must be proof that the defendant's
actions actually led to the harm suffered by the plaintiff.
The element of causation is broken down into two separate
issues—cause in fact and proximate cause. If the harm
would not have occurred without the wrongful act, then the
act is the cause in fact. To prove proximate cause, there
must be a close connection between the wrongful act and the
harm caused. The harm that resulted must have been foreseeable
from the wrongful act.
basic idea behind damages is that the plaintiff should be
restored—in the form of money—to his or her original
position before the negligence occurred. Courts allow plaintiffs
to collect for medical bills, lost wages, pain and suffering,
and other losses.
Defenses to Negligence Suits Even
when a plaintiff can prove all of the elements of negligence,
the defendant may be able to raise a valid legal defense.
Most states allow a defense called comparative negligence.
In comparative negligence the defendant and the plaintiff
split the loss according to how much each person was at fault.
For example, if a judge decides that a plaintiff was 60 percent
responsible for injuries and the defendant only 40 percent
responsible, each would only pay that particular percentage.
As another legal defense, the defendant may argue that the
plaintiff assumed the risk of the harm and should therefore
be held responsible for the resulting injury.