Last Updated on March 17, 2021 by Theodore Spaulding
Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property. Someone who suffers loss caused by another’s negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss.
Elements of negligence claims
The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages. Some of these elements must be established by anyone who wants to sue in negligence. These are called the “elements” of negligence.
Generally, the duty of a party to another involves “a duty to take care of an injured party by ensuring the rights, duties and privileges of the injured party are protected”. To that end, the duty includes duties such as acting reasonably to avoid a harm and acting within the boundaries of the other persons reasonable and expected norms. Breach In order to sue for breach, someone who has breached a duty must show that the defendant acted contrary to that duty. Another party with a similar duty to someone injured may support the plaintiff, but they cannot act contrary to that duty. In contrast, an individual who breached a duty to another could support the injured party if they have acted in reasonable reliance on the duty.
The most common breach of duty consists in the defendant failing to exercise their particular legal duties to the plaintiff. Examples of duties include duty to take reasonable care to avoid injury to others, duty to exercise care in connection with a legal proceeding, duty to maintain necessary records, duty to follow procedure, duty to warn of a dangerous condition, etc. Examples of breaches include the defendant using motor vehicles in a reckless or negligent manner, using dangerous chemicals, failing to provide first aid or emergency assistance when required, failing to stop a harm from being done, failing to provide useful information to the plaintiff when they would like to know it, etc. Duty A duty is a legal obligation to act in accordance with a law or moral principle.
Intention and/or malice
Further establishment of conditions of intention or malice where applicable may apply in cases of gross negligence.
A personal injury suit can be based upon the defendant’s negligent conduct, but negligence may also lead to a cause of action in the law. Causes of action are often situated around one or more injuries. At common law, there was an element of a likelihood of causation. This means that the plaintiff could hold the defendant responsible even though the injury that the plaintiff suffered was not foreseeable in some sense. In negligence cases, the plaintiff will sometimes argue that the defendant’s act or omission caused the harm that the plaintiff suffered. A cause of action is often asserted where the plaintiff will assert that the defendant was negligent in a fashion to cause an injury to the plaintiff.
Factual causation (actual cause)
For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. The traditional approach to factual causation seeks to determine whether the injury would have happened even if the defendant had taken care. This is known as the but-for test: Causation can be established if the injury would not have happened but for the defendant’s negligence. The but-for test is satisfied only if the defendant’s negligence is a necessary condition for the injury.
Legal causation (proximate cause)
Proximate cause means “legal cause,” or one that the law recognizes as the primary cause of the injury. The plaintiff will have to show that the injuries were the natural and direct consequence of the proximate cause, without which the injuries would not have occurred.
Damages are payments made to compensate for damages caused by another’s negligence. The essential element of damages is that the injured party received the value of the injuries caused by the negligence.