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The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant where the plaintiff is also at ult. However, this doctrine often leads to unir results. For example, even if a defendants negligence is the overwhelming cause of the plaintiffs injury, even slight negligence on the part of the plaintiff completely bars his recovery. Also, the negligence of many defendants such as corporations, manucturers, and landowners creates no corresponding risk of injury to themselves. In such cases the doctrine of contributory negligence, which can completely eliminate the liability for their negligence, reduces their incentive to act safely. As a result, courts and statutes have considerably weakened the doctrine of contributory negligence.
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Assumption of risk may also be implied from a plaintiffs conduct. For example, the defendant gives the plaintiff, a painter, a scaffold with a badly frayed rope. The plaintiff, fully aware of the ropes condition, proceeds to use the scaffold and is injured. The defendant can raise the implied assumption of risk defense. This defense is similar to the contributory negligence defense; in the above example, the defendant might also argue that the plaintiff was contributorily negligent for using the scaffold when he knew the rope was frayed.
Special SkillsIf 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.
In some circumstances ilure to anticipate an emergency may constitute negligence. The reasonable person anticipates, and takes precautions against, foreseeable emergencies. For example, the owner of a theater must consider the possibility of a fire, and the owner of a swimming pool must consider the possibility of a swimmer drowning. Failure to guard against such emergencies can constitute negligence.
BarGill, Oren, and Omri BenShahar. . The Uneasy Case for Comparative Negligence.American Law and Economics Review spring.
n. ilure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from intentional torts assault or trespass, for example or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all s of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In a claim for damages based on an allegation of anothers negligence, the injured party plaintiff must prove a that the party alleged to be negligent had a duty to the injured partyspecifically to the one injured or to the general public, b that the defendants action or ilure to act was negligentnot what a reasonably prudent person would have done, c that the damages were caused proximately caused by the negligence. An added ctor in the formula for determining negligence is whether the damages were reasonably foreseeable at the time of the alleged carelessness. If the injury is caused by something owned or controlled by the supposedly negligent party, but how the accident actually occurred is not known like a ton of bricks lls from a construction job, negligence can be found based on the doctrine of res ipsa loquitor Latin for the thing speaks for itself. Furthermore, in six states and the District of Columbia, an injured party will be denied any judgment payment if found to have been guilty of even slight contributory negligence in the accident. This archaic and unir rule has been replaced by comparative negligence in the other states, in which the negligence of the claimant is balanced with the percentage of blame placed on the other party or parties joint tortfeasors causing the accident. In automobile accident cases in sixteen states the head of the household is held liable for damages caused by any member of the mily using the car under what is called the mily purpose doctrine. Six states California, New York, Michigan, Florida, Idaho, Iowa, Minnesota, Nevada, Rhode Island make the owner of the vehicle responsible for all damages whether or not the negligent driver has assets or insurance to pay a judgment. Eight states Connecticut, Massachusetts, New Jersey, Oregon, Rhode Island, Tennessee, Virginia, West Virginia impose similar liability on the owner, but allow the owner to rebut a presumption that the driver was authorized to use the car. Negligence is one of the greatest sources of civil litigation along with contract and business disputes in the United States. Seecontributory negligencecomparative negligencedamagesnegligence per segross negligencejoint tortfeasorstortfeasortortliabilityres ipsa loquitur
Most states have adopted the percent rule of comparative negligence. Under this rule the plaintiff cannot recover any damages if her negligence was as great as, or greater than, the negligence of the defendant. This rule partially retains the doctrine of contributory negligence, reflecting the view that a plaintiff who is largely responsible for her own injury is unworthy of compensation. A minority of states have adopted pure comparative ult. Under that rule even a plaintiff who is percent at ult in causing her injury may still recover percent of damages, reflecting the defendants percentage of ult.
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In many states children are presumed incapable of negligence below a certain age, usually seven years. In some states children between the ages of seven and fourteen years are presumed to be incapable of negligence, although this presumption can be rebutted. Once a person reaches the age of majority, usually eighteen years, she is held to adult standards of conduct.
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.
One major exception to the rules of negligence exists with regard to children. If a child is engaging in what is considered an adult activity, such as driving an automobile or flying an airplane, the child will be held to an adult standard of care. The higher standard of care imposed for these s of activities is justified by the special skills required to engage in them and the danger they pose to the public.
. Ordinary negligence is the want of ordinary diligence; slight or less than ordinary negligence, is, the want of great diligence; and gross or more than ordinary negligence, is the want of slight diligence.
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Also, a person cannot deny personal knowledge of basic cts 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 inidual must even take into account her lack of knowledge of some situations, such as when walking down a dark, unmiliar corridor.
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.. In those contracts made for the sole interest of the party who has received, and is to return the thing which is the object of the contract, such, for example, as loan for use, or commodatum, the slightest negligence will make him responsible. Jones Bailm. , ; Storys Bailm. Sec. ; Pothier, Obs. Gen. ubi supra.
Assumption of RiskUnder the assumption of risk defense, a defendant can avoid liability for his negligence by eslishing that the plaintiff voluntarily consented to encounter a known danger created by the defendants negligence. Assumption of risk may be express or implied. Under express assumption of risk, persons agree in advance that one person consents to assume the risk of the others negligence. For example, a skier who purchases a lift ticket at a ski resort usually expressly agrees to assume the risk of any injury that might occur while skiing. Thus, even if the ski resort negligently ils to mark a hazard on a trail resulting in an injury to a skier, the ski resort may invoke the assumption of risk defense in the skiers subsequent lawsuit.
Henderson, James A., Jr. . Why Negligence Dominates Tort.UCLA Law Review December.
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In determining whether a defendants negligence is the proximate cause of a plaintiffs injury, most courts focus on the foreseeability of the harm that resulted from the defendants negligence. For example, if a driver negligently drives his automobile, it is foreseeable that he might cause an accident with another vehicle, hit a pedestrian, or crash into a storefront. Thus, the driver would be liable for those damages. But suppose the negligent driver collides with a truck carrying dynamite, causing an explosion that injures a person two blocks away. Assuming that the driver had no idea that the truck was carrying dynamite, it is not foreseeable that his negligent driving could injure a person two blocks away. Therefore the driver would not be liable for that persons injury under this approach. When applying this approach, courts frequently instruct juries to consider whether the harm or injury was the natural or probable consequence of the defendants negligence.
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A DOCTOR cannot be held liable if the patient has not responded vourably to treatment, a Delhi court said while refusing to frame charges against two doctors and three nurses of RBTB Hospital accused of causing a mans death due to
As the le below shows the results of the relationship between
Foreign phrasesMagna negligentia culpa est; magna culpa dolus est.Gross negligence is ult; gross ult is equivalent to a fraud.Culpa lata dolo aequiparatur.Gross negligence is equivalent to intentional wrong.See alsodelinquencyderelictiondisinterestdisregardexpirationultincompetenceinconsiderationindifferenceinertialacheslapselaxitymaladministratioconductmisprisionneglectnonfeasancenonperformanceomissionoversightresponsibilitynegligencethe tort or delict of being careless in breach of a duty to take care. The distinction to be made is between the act or omission itself, which is not enough to create legal liability for this there must be a breach of preexisting duty of care. Such a duty can exist on the basis of precedent, as, for example, a doctor to a patient or a carrier to a passenger, or can arise through the proximity or relationship of the parties. The categories of negligence are never closed and have been extended to cover liability for negligent misstatements or foreseeable mental harm. For the tort to be eslished, the breach of the duty by the act or omission must also have caused a loss, although if the loss is a pure economic loss there are difficulties.
In order to eslish negligence as aCause of Actionunder the law oftorts,a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by iling to conform to the required standard of conduct, the defendants negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in ct, harmed or damaged.
The law uses the concept of duty to limit the situations where a defendant is liable for a plaintiffs injury. Whether a defendant has a duty to protect the plaintiff from harm is a question decided by the court, not the jury. Over time, courts have developed numerous rules creating and limiting a persons duty to others, and sometimes duties are eslished or limited by statute. Whether the defendant owes the plaintiff a duty depends upon the relationship between the defendant and the plaintiff.
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Actually, the termproximate causeis somewhat misleading because as a legal concept it has little to do with proximity in time or space or causation. Rather, proximate cause is related to irness and justice, in the sense that at some point it becomes unir to hold a defendant responsible for the results of his negligence. For example, Mrs. OLearys negligent placement of her lantern may have started the Great Chicago Fire, but it would be unjust to hold her responsible for all the damage done by the fire.
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.. In those contracts which are made for the sole benefit of the creditor, the debtor is responsible only for gross negligence, good ith alone being required of him; as in tile case of a depositary, who is a bailee without reward; Story, Bailm. ; Danes Ab. c. , a, ; Serg. Rawle, ; but to this general rule, Pothier makes two exceptions. The first, in relation to the contract of a mandate, and the second, to the quasi contract negotiorum gestorum; in these cases, he says, the party undertaking to perform these engagements, is bound to use necessary care. Observation Generale, printed at the end of the Traite des Obligations.
In many jurisdictions the violation of a statute, regulation, or ordinance enacted to protect against the harm that resulted to the plaintiff is considered negligenceper se. Unless the defendant presents evidence excusing the violation of the statute, the defendants negligence is conclusively eslished. In some jurisdictions a defendants violation of a statute is merely evidence that the defendant acted negligently.
Sometimes, however, a completely unforeseeable event or result occurs after a defendants negligence, resulting in harm to the plaintiff. An abnormal, unpredicle, or highly improbable event that occurs after the defendants negligence is known as a superseding cause and relieves the defendant of liability. For example, suppose a defendant negligently blocks a road causing the plaintiff to make a detour in her automobile. While on the detour, an airplane hits the plaintiffs car, killing the plaintiff. The airplane was completely unforeseeable to the defendant, and thus he cannot be held liable for the plaintiffs death. The airplane was a superseding cause of the plaintiffs death.
NEGLIGENCE, contracts, torts. When considered in relation, to contracts, negligence may be ided into various degrees, namely, ordinary, less than ordinary, more than ordinary. Miles Rep. .
Conduct of OthersFinally, the reasonable person takes into account the conduct of others and regulates his own conduct accordingly. A reasonable person must even foresee the unlawful or negligent conduct of others if the situation warrants. Thus, a person may be found negligent for leaving a car unlocked with the keys in the ignition because of the foreseeable risk of theft, or for iling to slow down in the vicinity of a school yard where children might negligently run into the street.
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Sometimes physical circumstances beyond a persons control can excuse the violation of a statute, such as when the headlights of a vehicle suddenly il, or when a driver swerves into oncoming traffic to avoid a child who darted into the street. To excuse the violation, the defendant must eslish that, in iling to comply with the statute, she acted as a reasonable person would have acted.
Buswell, Henry F. .The Civil Liability for Personal Injuries Arising out of Negligence.Littleton, Colo. F.B. Rothman.
Similarly, evidence of voluntary intoxication will not excuse conduct that is otherwise negligent. Although intoxication affects a persons judgment, voluntary intoxication will not excuse negligent conduct, because it is the persons conduct, not his or her mental condition, that determines negligence. In some cases a persons intoxication is relevant to determining whether his conduct is negligent, however, because undertaking certain activities, such as driving, while intoxicated poses a danger to others.
A preexisting relationship can create an affirmative duty to exercise reasonable care to protect another person from harm. For example, an inn has an affirmative duty to protect its guests, a school has a duty to its pupils, a store has a duty to its customers, and a lifeguard has a duty to swimmers.
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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 firsttime driver clearly does not possess the experience and skill of an experienced driver. Although it may seem unir to hold the beginner to the standards of the more experienced person, this standard protects the general public from the risk of a beginners lack of competence, because the community is usually defenseless to guard against such risks.
EmergenciesThe law recognizes that even a reasonable person can make errors in judgment in emergency situations. Therefore, a persons conduct in an emergency is evaluated in light of whether it was a reasonable response under the circumstances, even though, in hindsight, another course of action might have avoided the injury.
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Just because an intervening cause exists, however, does not mean that the defendants negligent conduct is not the proximate cause of the plaintiffs injury. The defendant remains liable if he should have foreseen the intervening cause and taken it into account in his conduct. If a defendant negligently spills a large quantity of gasoline and doesnt clean it up, he will not be relieved of liability for a resulting fire merely because another person causes the gasoline to ignite, because it is foreseeable that the gasoline might be accidentally ignited. Also, it is foreseeable that a sudden gust of wind might cause the fire to spread quickly.
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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 communitys 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 eslish the standard of conduct of the reasonable person. For example, a majority of people in a community may jaywalk, but jaywalking might still ll below the communitys standards of safe conduct.
In cases such as this, the doctrine ofRes Ipsa Loquiturthe thing speaks for itself is invoked.Res ipsa loquitorallows a plaintiff to prove negligence on the theory that his injury could not have occurred in the absence of the defendants negligence. The plaintiff must eslish that the injury was caused by an instrumentality or condition that was under the defendants exclusive management or control and that the plaintiffs injury would not have occurred if the defendant had acted with reasonable care. Thus, in the above example, the plaintiff can useres ipsa loquitorto prove that the doctor negligently injured his shoulder.
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Conduct that lls below the standards of behavior eslished 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.
Exceptionally, negligence may constitute a crime in certain circumstances most noly gross negligence manslaughter which requires that there was a duty of care owned by the accused to the deceased, that there was a breach of the duty of care by the accused, that the death of the deceased was caused by breach of the duty of care by the accused and that the breach of the duty of care by the accused was so great as to be characterized as gross negligence and therefore a crime. Some statutes may criminalize negligence, most noly the Road Traffic Acts, which have made careless driving a criminal offence.
Physical CharacteristicsThe law takes a persons physical characteristics into account in determining whether that persons conduct is negligent. Whether a persons conduct is reasonable, and therefore not negligent, is measured against a reasonably prudent person with the same physical characteristics. There are two reasons for taking physical characteristics into account. A physically impaired inidual cannot be expected to conform to a standard of conduct that would be physically impossible for her to meet. On the other hand, a physically challenged person must act reasonably in light of her handicap, and she may be negligent in taking a risk that is unreasonable in light of her known physical limitations. Thus, it would be negligent for a blind person to drive an automobile.
The search for proximity or a suile relationship between the parties is aided by the notion of reasonable foreseeability of harm of the kind that occurs. But this is not enough on its own to eslish liability in every case, although in cases of physical injury or damage to the plaintiff s property it is likely to carry the plaintiff a long way. Negligence in the nontechnical sense may well trigger liability under a statute that demands a certain degree of care to be taken. SeeECONOMIC LOSSFAULTNERVOUS SHOCK.
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 theCivil Lawof 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 r the widestranging 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 persons conduct is judged.
A plaintiffs evidence of conformity or nonconformity with a customary practice does not eslish whether the defendant was negligent; the jury decides whether a reasonably prudent person would have done more or less than is customary.
AlcoholAutomobilesGood Samaritan DoctrineGuest StatutesLast Clear ChanceMacPherson v. Buick Motor Co.;Natural and Probable ConsequencesPalsgraf v. Long Island Railroad CompanyProduct LiabilityRescueRylands v. FletcherStrict Liability.
Comparative NegligenceMost states, either by court decision or statute, have now adopted some form of comparative negligence in place of pure, contributory negligence. Under comparative negligence, or comparative ult as it is sometimes known, a plaintiffs negligence is not a complete bar to her recovery. Instead the plaintiffs damages are reduced by whatever percentage her own ult contributed to the injury. This requires the jury to determine, by percentage, the ult of the plaintiff and defendant in causing the plaintiffs injury. For example, suppose a plaintiff is injured in an automobile accident and sustains , in damages. The jury determines that the plaintiff was percent responsible for the accident and that the defendant was percent responsible. The plaintiff will then be allowed to recover percent of her damages, or ,.
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A minority of courts hold the view that the defendants negligence is the proximate cause of the plaintiffs injury if the injury is the direct result of the negligence. Usually a plaintiffs injury is considered to be the direct result of the defendants negligence if it follows an unbroken, natural sequence from the defendants act and no intervening, external force acts to cause the injury.
Perhaps no issue in negligence law has caused more confusion than the issue of proximate cause. The concept of proximate cause limits a defendants liability for his negligence to consequences reasonably related to the negligent conduct. Although it might seem obvious whether a defendants negligence has caused injury to the plaintiff, issues of causation are often very difficult. Suppose, for example, that a defendant negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a utility pole, resulting in a power outage. Clearly the defendants negligence has in ct caused both the accident and power outage. Most people would agree that the negligent defendant should be liable for the other drivers injuries, but should he also be liable to an employee who, due to the ilure of her electric alarm clock, arrives late for work and is fired? This question raises the issue of proximate cause.
Nursing home negligence? Negligence has specific legal definitionsand personal injury lawyers love to muddy them
ExpertsOften a plaintiff will need an expert witness to eslish that the defendant did not adhere to the conduct expected of a reasonably prudent person in the defendants circumstances. A juror may be unable to determine from his own experience, for example, if the medicine prescribed by a physician was reasonably appropriate for a patients illness. Experts may provide the jury with information beyond the common knowledge of jurors, such as scientific theories, data, tests, and experiments. Also, in cases involving professionals such as physicians, experts eslish the standard of care expected of the professional. In the above example, the patient might have a physician offerExpert Testimonyregarding the medication that a reasonably prudent physician would have prescribed for the patients illness.
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The law considers a variety of ctors in determining whether a person has acted as the hypothetical reasonable person would have acted in a similar situation. These ctors 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 persons actions.Knowledge, Experience, and PerceptionThe law takes into account a persons knowledge, experience, and perceptions in determining whether the inidual has acted as a reasonable person would have acted in the same circumstances. Conduct must be judged in light of a persons 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 iling to see the other car.
abandonmentbreach of dutycarelessnessculpadelinquencyderelictiondisregardilureheedlessnessimprovidenceimprudenceinadvertencyinattentioninattentivenessincircumspectioninconsiderationincuriaindifferenceinobservanceirresponsibilitylack of attention, lack of diligence,laxitylaxnessneglectfulnessneglegentiaobliviousnessomissionoversightregardlessnessremissnelacknessunconcernunmindfulnessunobservanceunwarinesswant of thought
The concept of the reasonable person distinguishes negligence from intentional torts such asAssault and Battery. To prove an intentional tort, the plaintiff seeks to eslish that the defendant deliberately acted to injure the plaintiff. In a negligence suit, however, the plaintiff seeks to eslish that the ilure of the defendant to act as a reasonable person caused the plaintiffs injury. An intoxicated driver who accidentally injures a pedestrian may not have intended to cause the pedestrians 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.
Even great jurists have had difficulty articulating exactly what constitutes proximate cause. Although the law provides tests such as foreseeability and natural, direct consequences, ultimately the issue of proximate cause is decided by peoples sense of right and wrong. In the example where the defendant spills gasoline and does not clean it up, most people would agree that the defendant should be liable if a careless smoker accidentally ignites the gasoline, even if they could not articulate that the smoker was a foreseeable, intervening cause of the fire.
A defendant is not liable in negligence, even if she did not act with reasonable care, if she did not owe a duty to the plaintiff. In general, a person is under a duty to all persons at all times to exercise reasonable care for their physical safety and the safety of their property. This general standard of duty may lead to seemingly unjust results. For example, if a property owner leaves a deep hole in her backyard with no warnings or barriers around the hole, she should be liable if her guest lls into the hole. But what if a trespasser enters the backyard at night and lls into the hole? Although the property owner was negligent in iling to guard against someone lling into the hole, it would be unir to require the property owner to compensate the trespasser for his injury. Therefore, the law states that a property owner does not have a duty to protect a trespasser from harm.
. When the law imposes a duty on an officer, whether it be by common law or statute, and he neglects to perform it, he may be indicted for such neglect; Salk. R. Mod, R. ; and in some cases such neglect will amount to a forfeiture of the office. Bl. Com. . See Bouv. Inst. Index, h.t.
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Associated conceptsactionable negligence, active negliience,assumption of risk, causal negligence,comparative negligence, concurrent negligence, contributory negliience,criminal negligence, culpable negligence, estoppel by negligence,gross negligence, imputed negligence, last clear chance doctrine,malpracticenegligence per se, ordiiary negligence, passive negligence,res ipsa loquitur, stannard of care, supervening negligence, wanton negligence, willful negligence
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Sometimes a plaintiffs injury results from more than one cause. For instance, suppose a defendant negligently injures a pedestrian in an automobile accident. An emergency room doctor negligently treats the plaintiff, aggravating her injury. The doctors negligence is an intervening cause of the plaintiffs injury. A cause of injury is anIntervening Causeonly if it occurs subsequent to the defendants negligent conduct.
Also, a person can be negligent in causing an emergency, even if he acts reasonably during the emergency. A theater owner whose negligence causes a fire, for instance, would be liable for the injuries to the patrons, even if he saved lives during the fire.
Cupp, Richard L., Jr., and Danielle Polage. . The Rhetoric of Strict Products Liability Versus Negligence An Empirical Analysis.New York University Law Review October.
Sometimes a person can voluntarily assume a duty where it would not otherwise exist. If the doctor who encounters an automobile accident decides to render aid to the victims, she is under a duty to exercise reasonable care in rendering that aid. As a result, doctors who have stopped along the highway to render medical assistance to accident victims have been sued for negligence. Many states have adopted good samaritan statutes to relieve iniduals who render emergency assistance from negligence liability.
In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. The court will instruct the jury as to the standard of conduct required of the defendant. For example, a defendant sued for negligent driving is judged according to how a reasonable person would have driven in the same circumstances. A plaintiff has a variety of means of proving that a defendant did not act as the hypothetical reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the of injury that occurred to the plaintiff. Also, a plaintiff might introduce expert witnesses, evidence of a customary practice, orCircumstantial Evidence.
. Three great principles of responsibility, seem naturally to follow this ision.
CustomEvidence of the usual and customary conduct or practice of others under similar circumstances can be admitted to eslish the proper standard of reasonable conduct. Like the evidence provided by expert witnesses, evidence of custom and habit is usually used in cases where the nature of the alleged negligence is beyond the common knowledge of the jurors. Often such evidence is presented in cases alleging negligence in some business activity. For example, a plaintiff suing the manucturer of a punch press that injured her might present evidence that all other manucturers of punch presses incorporate a certain safety device that would have prevented the injury.
Circumstantial EvidenceSometimes a plaintiff has no direct evidence of how the defendant acted and must attempt to prove his case through circumstantial evidence. Of course, any ct in a lawsuit may be proved by circumstantial evidence. Skid marks can eslish the speed a car was traveling prior to a collision, a persons appearance can circumstantially prove his or her age, etc. Sometimes a plaintiff in a negligence lawsuit must prove his entire case by circumstantial evidence. Suppose a plaintiffs shoulder is severely injured during an operation to remove his tonsils. The plaintiff, who was unconscious during the operation, sues the doctor in charge of the operation for negligence, even though he has no idea how the injury actually occurred. The doctor refuses to say how the injury occurred, so the plaintiff will have to prove his case by circumstantial evidence.
Contributory NegligenceFrequently, more than one person has acted negligently to create an injury. Under the commonlaw rule of contributory negligence, a plaintiff whose own negligence was a contributing cause of her injury was barred from recovering from a negligent defendant. For example, a driver negligently enters an intersection in the path of an oncoming car, resulting in a collision. The other driver was driving at an excessive speed and might have avoided the collision if she had been driving more slowly. Thus, both drivers negligence contributed to the accident. Under the doctrine of contributory negligence, neither driver would be able to recover from the other, due to her own negligence in causing the accident.
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 manucturer must know the characteristics and dangers of its product, at least to the extent they are generally known in the industry.
Mental CapacityAlthough a persons physical characteristics are taken into account in determining negligence, the persons mental capacity is generally ignored and does not excuse the person from acting according to the reasonable person standard. The ct that an inidual is lacking in intelligence, judgment, memory, or emotional sility does not excuse the persons ilure to act as a reasonably prudent person would have acted under the same circumstances. For example, a person who causes a forest fire by iling to extinguish his campfire cannot claim that he was not negligent because he lacked the intelligence, judgment, or experience to appreciate the risk of an untended campfire.
.. In those contracts which are for the reciprocal benefit of both parties, such as those of sale, of hiring, of pledge, and the like, the party is bound to take, for the object of the contract, that care which a prudent man ordinarily takes of his afirs, and he will therefore be held responsible for ordinary neglect. Jones Bailment, , ; Lord Raym. ; Story, Bailm. Sec. ; Pothier, Obs. Gener. ubi supra.
Even if an intervening cause is foreseeable, however, in some situations the defendant will still be excused from liability. If the intervening cause is the intentional or criminal conduct of a third person, the defendant is not liable for this persons negligent conduct. In the example where the defendant spilled gasoline and did not clean it up, he is not responsible for the resulting fire if someone intentionally ignites the gas. Also, sometimes a third person will discover the danger that the defendant created by his negligence under circumstances where the third person has some duty to act. If the third person ils to act, the defendant is not liable. In the gasoline example, suppose the defendant, a customer at a gas station, negligently spills a large quantity of gas near the pumps. The owner of the gas station sees the spilled gasoline but does nothing. The owner of the gas station, not the defendant, would be liable if another customer accidentally ignites the gasoline.
The concept of negligence developed underEnglish Law. Although EnglishCommon Lawhad 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 ilure to act. Originally liability for iling 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.
One always has a duty to refrain from taking actions that endanger the safety of others, but usually one does not have a duty to render aid or prevent harm to a person from an independent cause. A common example of this limitation on duty is the lack of a duty to go to the aid of a person in peril. An expert swimmer with a boat and a rope has no duty to attempt to rescue a person who is drowning although a hired lifeguard would. A physician who witnesses an automobile accident has no duty to offer emergency medical assistance to the accident victims.
. In general, a party who has caused an injury or loss to another in consequence of his negligence, is responsible for all the consequence. Hob. ; Wils. ; Chit. TI. , Hen. Munf. ; Str. ; East, R. . An example of this kind may be found in the case of a person who drives his carriage during a dark night on the wrong side of the road, by which he commits an injury to another. East, R. ; Campb. R. ; Cam b. ; New Rep. . Vide Gale and Whatley on Easements, Index, h.t.; T. R. ; East, R. ; B. S. C. E. C. L. R. ; Taunt. ; Stark. R. ; . R. Esp. R. , ; B. C. . Whether the incautious conduct of the plaintiff will excuse the negligence of the defendant, see Q. B. ; P. M. Lyr. Fault.
Even if a plaintiff eslishes that the defendant had a duty to protect the plaintiff from harm and breached that duty by iling to use reasonable care, the plaintiff must still prove that the defendants negligence was the proximate cause of her injury.
ChildrenChildren may be negligent, but they are not held to the same standard of conduct as adults. A childs conduct is measured against the conduct expected of a child of similar age, intelligence, and experience. Unlike the standard for adults, the standard of reasonable conduct for children takes into account subjective ctors such as intelligence and experience. In this sense the standard is less strict than for adults, because children normally do not engage in the highrisk activities of adults and adults dealing with children are expected to anticipate their childish behavior.
Even if a plaintiff has eslished that the defendant owed a duty to the plaintiff, breached that duty, and proximately caused the defendants injury, the defendant can still raise defenses that reduce or eliminate his liability. These defenses include contributory negligence, comparative negligence, andAssumption of Risk.
The implied assumption of risk defense has caused a great deal of confusion in the courts because of its similarity to contributory negligence, and with the rise of comparative ult, the defense has diminished in importance and is viable today only in a minority of jurisdictions.
StatutesFederal and state statutes, municipal ordinances, and administrative regulations govern all kinds of conduct and frequently impose standards of conduct to be observed. For example, the law prohibits driving through a red traffic light at an intersection. A plaintiff injured by a defendant who ignored a red light can introduce the defendants violation of the statute as evidence that the defendant acted negligently. However, a plaintiffs evidence that the defendant violated a statute does not always eslish that the defendant acted unreasonably. The statute that was violated must have been intended to protect against the particular hazard or of harm that caused injury to the plaintiff.