Introduction to Negligence

• Author: Eric E. Johnson
• Pages: 48-54

48

3. Introduction to Negligence

Introduction

The center-stage cause of action in torts is negligence. In terms of its

economic impact and social importance, negligence predominates.

In its briefest form, the doctrine of negligence holds that if you are to

blame, through your carelessness, for an injury to the person or

property of another, you will be liable for the damage.

Attorneys who practice “personal injury law” are, for the most part,

working with the negligence cause of action. Bus-stop ads and

billboards offering legal representation for “ACCIDENTS” are

mostly aimed at negligence claims. On the other side of the coin,

defending against negligence suits is a major preoccupation of

insurance companies.

The Central Idea: Shifting the Burden of Loss

Negligence is all about who should bear the burden of the loss that

results from an injury-producing incident. It takes as a given that

something bad has happened. Often it is something tragic.

Negligence tries to make the best out of a bad situation by allowing

the burden of the loss to be shifted from one party to another where

appropriate.

Fundamentally, the negligence cause of action is about compensation.

It is not about punishment. It is possible to get punitive damages as

an added remedy in a negligence lawsuit, but doing so requires

proving more than negligence. In particular a punitives damages

award requires showing that the defendant’s conduct was reckless,

wanton or willful. But at its most basic level, the cause of action for

negligence is about trying to allow a less blameworthy party to shift

the burden of misfortune on to a more blameworthy party.