2.1 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 compensable 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, following the principle of restitutio in integrum, literally 'restoration to the original condition'). Thus the severity of the negligence is irrelevant; "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.

2.2 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.

2.2.1 Duty

(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. The duty element may be considered a formalisation of the implicit responsibilities held by an individual towards another individual within society.

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.

2.2.2 Breach of duty

(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.

See also: calculus of negligence

2.2.3 Causation

(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.

2.2.4 Damages

(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.

2.3 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. In the United States, if it is questionable what a reasonable person would do, a 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.

2.4 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.

3 Leading cases

• Donoghue v. Stevenson
• Palsgraf v. Long Island Railroad Co.

4 See also

• Corporate abuse

Criminal law Tort law *

<Hide>