Negligence





Negligence can be either (1) criminal or (2) civil in nature.

Criminal Negligence

(1) In the realm of criminal common law, criminal negligence is a legal term
of art for a state of mind which is careless, inattentive, neglectful,
wilfully blind, or reckless; it is the mens rea part of a crime which, if
occuring simulaneously with the actus reus, gives rise to criminal
liability. Some distinguish recklessness from negligence; recklessness is a
'malfeasance' that increases the danger of an act occuring; whereas criminal
negligence is a misfeasance or nonfeasance, merely allowing otherwise
avoidable dangers to manifest. This is an example of the difference between
a general intent crime and a specific intent crime with recklessness being
more specific than criminal negligence. In some cases this 'nonfeasance' can
rise to the level of wilful blindness where the individual intentionally
avoid confronting a situation that no reasonable person would ever allow to
occur. Gross criminal negligence is behavior which involves a "wanton
disregard for human life". Of course, in all these cases if the actus reus
or bad act never occurs then there is no crime as both elements are
necessary under the criminal common law to sustain a guilty conviction.

Usually the punishment for criminal negligence, criminal recklessness,
criminal endangerment, wilful blindness and other related crimes is
imprisonment, unless the criminal is insane (and then in some cases the
sentence is indeterminate). Examples of criminally negligent crimes are
criminally negligent homicide and negligent endangerment of a child.

Negligence in private law

(2) Under civil common law, negligence is an ingredient of many
non-intentional torts or wrongs that one individual suffers because of the
nonfeasance, misfeasance or malfeasance of another. As opposed to the common
law tradition of most Anglo-American jurisdictions in civil law legal
systems such as continental Europe, Quebec and Puerto Rico, negligence is
classified as a form of extra-contractual responsibility called a
quasi-delict (in distinction to the more wilful delicts) within the
conceptual framework of the Law of Obligations. The rules and elements are
not the same as those set forth below under the Anglo-American common law
tradition.

A lawsuit grounded in a claim of negligence might be brought, for example,
by someone injured in an auto accident against another driver who he felt
caused the accident by being reckless or irresponsible.

     Note: unless otherwise stated, this rest of this section refers to
     negligence under common law (not criminal negligence) in the common law
     as practiced in most of the jurisdictions of the United States.

Negligence in common law countries

Under law, negligence is usually defined in the context of jury instructions
wherein a judge, in language he finds fitting, tells the jury that a party
is to be considered negligent if he or she failed to exercise the level of
care that a reasonable person, possessed of the same knowledge, would have
exercised under the same circumstances. In most jurisdictions, it is
necessary to show first that a person had a duty to exercise care in a given
situation, and that he breached that duty.

In order to prove negligence, it is not necessary to prove harm, but in
order for a cause of action to rest in tort, harm must be proven. Hence, it
would be meaningless to sue someone for negligence if no harm resulted.
Conversely, it is not enough that a harm was done. In order for the harm to
be compensible in a negligence lawsuit, the defendant must be shown to have
been negligent, and it must be demonstrated that his negligence was the
proximate cause of the harm felt by the plaintiff.

The law holds that any reasonable person would, if able, follow the law.
Consequently, as a matter of law, a person may be declared by a court liable
as a matter of law ("negligence per se") if it is proven that he or she
broke the law. For example, someone injuring another in an auto accident may
be found negligent per se in a civil suit arising from the accident if he
was convicted in criminal court of driving while intoxicated at the time of
the accident.

It is often observed by practitioners in tort law that a prospective
plaintiff who has a poor understanding of the foregoing principles will
desire to see a significant monetary penalty applied as a result of the
outrageousness of a defendant's act. He may feel that he "deserves" an award
all out of proportion to his actual misfortune, because of the severe nature
of the defendant's carelessness. This is a mistaken view of the authority of
the law. Damages are awarded in proportion to the scope of the harm done,
not the severety of the negligence. "But he was so careless, he could have
killed me!" falls on deaf ears in American courts. Still, some negligent
acts are recognized as a matter of law to be so egregious as to merit
financial penalty over and above actual damages, in order to reform the
conduct of a malicious or callously indifferent defendant, and, by example,
others similarly disposed. This is the purpose of punitive damages. Such
acts are rare indeed, well defined in the law of applicable jurisdictions,
and limited to the exact conditions of the law under which they may be awarded.

Only when the severity of negligence rises to an extreme level (and then,
only when harm results therefrom) might it meet the standards required under
laws providing for punitive damages.

Components of a negligence cause of action

A negligence lawsuit involves many components which need to be considered
before the success of the case can be determined. Proving negligence is far
more complicated than it may seem.

When considering a negligence cause of action there are four primary
elements which need to be viewed and covered thoroughly: (1)duty, (2) breach
of duty, (3) causation, and (4) damages.

The duty element

(1) The duty element is the legal requirement that the person being sued for
negligence must adhere to a standard of conduct in protecting others from
unreasonable risk of harm.

It really is the legal obligation we have in our relationships with others.
Different duties apply to different people.

   * A parent has a duty to care for her children.
   * A landlord has a duty to keep a residence habitable for her tenants.
   * Each duty is applicable to the pertinent responsibility at hand.
   * Professionals are held to a higher standard of care than the average
     person in society. These people take oaths in their professions and
     need to maintain that level of duty when they perform their
     professional activities.

The breach of duty element

(2) Breaching that duty is the second element to a negligence lawsuit. The
question to be asked is: Would a reasonable person in a similar situation
have done the same thing as the person being sued? To come to that
conclusion both objective and subjective standards need to be considered.

   * The objective standard of breach of duty only considers a hypothetical
     person and what her or his reasonable behavior might be.
   * The subjective standard considers the actual person being sued and if
     she or he thinks they acted reasonably in the matter at hand.

The causation element

(3) The causation of negligence is the third critical element of the
lawsuit. Both actual cause and proximate cause are considered. Actual cause
asks the question of whether the person being sued, the defendant, was the
actual cause of injuries sustained by the person initiating the lawsuit, the
plaintiff. Proximate cause looks at the issue of foreseeability. When
considering the event that has happened, it is asked whether or not the
injuries sustained were foreseeable or too remotely connected to the
incident to even consider.

The necessity for damages: element four

(4) The final element of a negligence lawsuit is the damages being sought.
Damages are what the plaintiff is seeking in recovering for the incident
resulting from the negligent act.

   * Compensatory damages are designed to compensate the plaintiff for
     actual costs incurred. Of those, there are general and special damages.
   * General damages are those like monetary compensation for the injury
     sustained.
   * Special damages involve extra items such as material possessions loss
     from the negligent act.
   * Nominal damages can also be awarded when negligence can be proven but
     there is not a quantifiable loss as a result of it.
   * Punitive damages are those with the intent to punish the defendant. The
     hope is that awarding punitive damages will deter similar actions in
     the future both by the defendant and others similarly situated.

Legal procedures in negligence lawsuits

While most lawsuits are settled when a negligence lawsuit goes to trial, the
judge will determine what the defendant's duty was to the plaintiff as a
matter of law using the standard of reasonableness. If it is questionable
what a reasonable person would do, in the United Staets jury picked by the
adversaries (plaintiff and defendant) will consider the facts and render a
decision as well as determine the quantum of damages. Sometimes the trier of
fact will be the judge -- this has been the case in England since the 19th
century and is generally the case in the other Commonwealth countries.

Procedures and law in civil law jurisdictions

There are some differences in the law of negligence in civil law
jurisdictions, but the basic rules above are also applied in these delict
cases. In civil law jurisdictions the procedure is more akin to an
investigation with investigative judges will interview all parties and
witnesses and then prepare reports to be submitted to a panel of judges for
final decision. That decision may also be appealed several levels through a
judicial hierarchy.