What is Negligence in the Legal Sense?
What is Negligence? How Does the Legal System Deal with Negligence?
The best way to explain negligence is with some examples:
- If you fail to fix the roof in your office and a client comes in and the roof fails on her, causing injury, that's negligenceon your part.
- If you hire an employee and fail to do a background check and the employee harms someone, you can be subject to a negligent hiring complaint.
- If you back out of your driveway and don't look, and you back into someone, that's negligent driving.
Negligence is not doing something that a reasonable person would say should have been done, with the result that harm is done to someone else. Whether negligence exists is decided in a courtroom, through either a civil or criminal lawsuit.
In the legal sense, negligence is a common law concept that involves the failure of a duty to exercise reasonable care or to act in a manner consistent with how other reasonable people should act. Black's Law Dictionary says that negligence is "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."
Conditions for Negligence
In order for negligence to be proven in court, four conditions must be met:
- It must be clear that there was a duty to act
- It must be proven that there was a failure of the duty to act
- It must be proven that this failure was the proximate (direct) cause
- And it must be proven that harm was caused. (No harm, no foul, so to speak.)
Another way to state this concept is to say that an individual failed to exercise his or her duty to protect others from harm.
For example, in the second case above, a business owner has a duty to make sure the office is safe for customers.
If the owner fails to act to make sure of the office's safety, and his failure is the cause of harm to another, that's negligence.
If any of these four points, in order, cannot be proven, negligence is not present. For example, although harm may have been caused, if there was no duty to act, there is no negligence. Or, if it can be shown that the duty to act had nothing to do with the harm (that it was not the cause of the harm), negligence cannot be charged.
Standard of Care Depends on the Situation
Standard of care definitions relate to the degree of care that a reasonable person would have exercised in the given situation. The concept of standard of care is based on a "reasonable person" standard, which changes based on circumstances. For example, what is reasonable for an average person in a medical emergency situation is not reasonable for a medical doctor, who is held to a higher standard.
Malpractice as a Form of Negligence
Malpracticeis simply negligence with a higher standard of care. For example, if a doctor injures a patient, she has a license and is held to a higher standard.
Defenses to Negligence
- One defense to a charge of negligence is contributory negligence; that the other party also had a duty to act. In this case, the negligence of both parties is considered and apportioned between them. If someone is drunk and speeding, damage to someone else's car might be considered at 80%, but if the other party contributed to the damage (by failing to stop at a stop sign), their portion of the cost might be 20%.
- Another defense is assumption of risk. In this case, if you voluntarily expose yourself to risk, you are at least partly at fault. For example, if you buy a ticket to a ski resort, you assume the risk of being injured, because you are supposed to know that skiing is a dangerous sport. Of course, if the resort owners fail to maintain equipment, you can't assume that risk.
Indemnity Agreements and Negligence
Some businesses include indemnity agreements in contracts in an attempt to forestall negligence claims. An indemnity agreement includes "hold harmless" language, saying that the business can't be held negligent for its actions. But this kind of language doesn't protect against a negligence lawsuit and it's better left out of agreements if that is the only purpose of the language.