Negligence

• Author: Jeffrey Lehman, Shirelle Phelps

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Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

In order to establish negligence as a CAUSE OF ACTION under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

The concept of negligence developed under ENGLISH LAW. Although English COMMON LAW had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of "duty." For example, innkeepers were said to have a duty to protect the safety and security of their guests.

The concept of negligence passed from Great Britain to the United States as each state (except Louisiana) adopted the common law of Great Britain (Louisiana adopted the CIVIL LAW of France). Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century. Today negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important concepts in negligence law is the "reasonable person," which provides the standard by which a person's conduct is judged.

The Reasonable Person

A person has acted negligently if she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged. In law, the reasonable person is not an average person or a typical person but a composite of the community's judgment as to how the typical community member should behave in situations that might pose a threat of harm to the public. Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person. For example, a majority of people in a community may jay-walk, but jaywalking might still fall below the community's standards of safe conduct.

The concept of the reasonable person distinguishes negligence from intentional torts such as ASSAULT AND BATTERY. To prove an intentional tort, the plaintiff seeks to establish that the defendant deliberately acted to injure the plaintiff. In a negligence suit, however, the plaintiff seeks to establish that the failure of the defendant to act as a reasonable person caused the plaintiff's injury. An intoxicated driver who accidentally injures a pedestrian may not have intended to cause the pedestrian's injury. But because a reasonable person would not drive while intoxicated because it creates an unreasonable risk of harm to pedestrians and other drivers, an intoxicated driver may be held liable to an injured plaintiff for negligence despite his lack of intent to injure the plaintiff.

The law considers a variety of factors in determining whether a person has acted as the hypothetical reasonable person would have acted in a similar situation. These factors include the knowledge, experience, and perception of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person's actions.

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Knowledge, Experience, and Perception The law takes into account a person's knowledge, experience, and perceptions in determining whether the individual has acted as a reasonable person would have acted in the same circumstances. Conduct must be judged in light of a person's actual knowledge and observations, because the reasonable person always takes this into account. Thus, if a driver sees another car approaching at night without lights, the driver must act reasonably to avoid an accident, even though the driver would not have been negligent in failing to see the other car.

In addition to actual knowledge, the law also considers most people to have the same knowledge, experience, and ability to perceive as the hypothetical reasonable person. In the absence of unusual circumstances, a person must see what is clearly visible and hear what is clearly audible. Therefore, a driver of a car hit by a train at an unobstructed railroad crossing cannot claim that she was not negligent because she did not see or hear the train, because a reasonable person would have seen or heard the train.

Also, a person cannot deny personal knowledge of basic facts commonly known in the community. The reasonable person knows that ice is slippery, that live wires are dangerous, that alcohol impairs driving ability, and that children might run into the street when they are playing. To act as a reasonable person, an individual must even take into account her lack of knowledge of some situations, such as when walking down a dark, unfamiliar corridor.

Finally, a person who undertakes a particular activity is ordinarily considered to have the knowledge common to others who engage in that activity. A motorist must know the rules of the road and a product manufacturer must know the characteristics and dangers of its product, at least to the extent they are generally known in the industry.

Special Skills If a person engages in an activity requiring special skills, education, training, or experience, such as piloting an airplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity. In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. Often persons practicing these special skills must be licensed, such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so, because the public relies on the special expertise of those who engage in such activities. Thus, an unlicensed driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licensed driver.

The law does not make a special allowance for beginners with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it may seem unfair to hold the beginner to the standards of the more experienced person, this standard protects the general public from the risk of a beginner's lack of competence, because the community is usually defenseless to guard against such risks.

Physical Characteristics The law takes a person's physical characteristics into account in determining whether that person's conduct is negligent. Whether a person's...