TL - Negligence (Lesson)

Introduction

Not all torts are intentional. An individual can breach his or her duty in our society through other ways than by committing an intentional tort. Many harmful actions are a product of negligence. Negligence is a result of the behavior that creates unreasonable risks of harm to persons and property. Negligence is an accidental or unintentional tort. It is the tort that occurs most often in our society. In this lesson, we will focus on a brief overview of the elements of negligence.

Let's Dig In!

Negligence takes place through a behavior that creates unreasonable risks of harm to persons and property. A person is considered negligent when his or her behavior is no longer conduct that is normally expected from a reasonable person under specific circumstances.

Below are the specific elements that must be determined in a claim of negligence. 

• The defendant must have a duty of care or owe a service to the victim (plaintiff).
• If the plaintiff cannot demonstrate that the defendant owed him or her a duty of care, then it is not necessary to look at the other elements.

The defendant must have failed that duty, or violated a promise of obligation to the victim (plaintiff).

• This is a breach of duty. This happens when you commit breach of duty to another person by not exercising the degree of care that a reasonable person would exercise in that same situation.
• In a court situation, the jury would be told to determine what a “reasonable person” would have done in the situation.

Proximate cause must be evident. This is the legal connection between the unreasonable conduct and the resulting harm.

• Without proximate cause, the result of the action would not have occurred. To prove this, courts will apply the foreseeability test – “Was the injury to the plaintiff foreseeable at the time that the defendant engaged in the unreasonable conduct?”
• When a negligence situation is taken to court, jurors are required by tort law to use their common sense and life experience in determining the appropriate degree of care that a normal person would in those situations.

The plaintiff must have suffered loss, injury, or damage to property caused by the defendant’s actions or failure to act.

• Did the plaintiff suffer physical injuries, property damage, or financial loss?
• Without actual harm even the most careless conduct will not result in liability for negligence.

Not every accident producing an injury is a result of negligence for example:

Some accidents cannot be avoided:

• Someone may have a seizure or blackout while driving which causes them to lose control of their car and crash into someone else’s car – they had an unknown medical condition.
• You are at a baseball game and you get hit by a fly ball. This is assumption of risk – by going to the game you have the expectation of the possibility of a fly ball being hit into the stands, risking the possibility of being hit by a fly ball.

There are several defenses in cases of negligence. See the table below for some of the defenses to a claim of negligence:

Let's Review!

Take a moment to participate in the following activity to practice your understanding of the topics in this module.  Reach out to your instructor if you have any questions.

Final Thoughts

There is a specific code of conduct which all people in our society are expected to follow. There is a duty to the public for us as individuals to act in a certain way. Sometimes when we fail to act in a reasonable manner, our actions or behavior can result in an act of negligence, causing injury or harm to someone else. In these situations, the individual or entity has been careless and failed to perform a duty of care owed to another person or entity. Some defenses to negligence include: eliminating one of the elements of negligence, contributory negligence, comparative negligence, and assumption of risk.

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