Negligence
| Author | Jeffrey Wilson |
| Pages | 1369-1373 |
Page 1369
The law of negligence requires that persons conduct themselves in a manner that conforms with certain standards of conduct. Where a person's actions violate those standards, the law requires the person to compensate someone who is injured as a result of this act. In some instances, the law of negligence also covers a person's omission to act.
In tort law, negligence is a distinct cause of action. The Restatement (Second) of Torts defines negligence as "conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm." Negligence generally consists of five elements, including the following: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; (3) an actual causal connection between the defendant's conduct and the resulting harm; (4) proximate cause, which relates to whether the harm was foreseeable; and (5) damages resulting from the defendant's conduct.
In some instances, a statute or other law may define specific duties, such as the duty of a person to rescue another. Professionals, such as doctors and lawyers, are also required to uphold a standard of care expected in their profession. When a professional fails to uphold such a standard of care, the professional may be liable for malpractice, which is based on the law of negligence.
The standard of care required in negligence law typically relates to a person's conduct, rather than a person's state of mind. In most instances, a defendant is required to exercise the same "ordinary care" or "due care" that a reasonable person would exercise in the same or similar circumstances. Negligence cases often focus on the reasonableness requirement.
Page 1370
The so-called reasonable person in the law of negligence is a creation of legal fiction. Such a "person" is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circum-stances. The test as to whether a person has acted as a reasonable person is an objective one, and so it does not take into account the specific abilities of a defendant. Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence.
A jury generally decides whether a defendant has acted as a reasonable person would have acted. In making this decision, the jury generally considers the defendant's conduct in light of what the defendant actually knows, has experienced, or has perceived. For example, one may consider a defendant working on a loading dock and tossing large bags of grain onto a truck. In the process of doing this, the defendant notices two children playing near the truck. The defendant throws a bag towards the truck and unintentionally strikes one of the children. In this instance, a jury would take into account the defendant's actual knowledge that children were playing in the area when the jury determines whether the defendant acted reasonably under the circumstances. One must note, however, that the defendant would be liable for negligence only if the defendant owed a duty to the child.
In addition to the defendant's actual knowledge, a jury also considers knowledge that should be common to everyone in a particular community. Accordingly, the defendant in the example above would be charged with knowing that a bag of grain could injure a child, as well as with knowing the natural propensities of children.
A child generally is not expected to act as a reasonable adult would act. Instead, courts hold children to a modified standard. Under this standard, a child's actions are compared with the conduct of other children of the same age, experience, and intelligence. Courts in some jurisdictions, however, apply the adult standard of care to children who engage in certain adult activities, such as snowmobiling.
The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.
In the example above involving the defendant loading bags of grain onto a truck, the first question that must be resolved is whether the defendant owed a duty to the child. In other words, a court would need to decide...
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