negligence – failure to exercise the standard of care that a reasonable person would have exercised

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negligence:
n. (14c.)

1. The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of another’s rights; the doing of what a reasonable and prudent person would not do under the particular circumstances, or the failure to do what such a person would do under the circumstances.  The elements necessary to recover damages for negligence are

1.) the existence of a duty on the part of the defendant to protect the plaintiff from the injury complained of
2.) an injury to the plaintiff from the defendant’s failure.

The term denotes culpable carelessness.  The Roman-law equivalents are culpa and neglegentia, as contrasted with dolus (wrongful intention). —  aka actionable negligence; ordinary negligence; simple negligence.

2. A tort grounded in this failure, usually expressed in terms of the following elements: duty , breach of duty, causation, and damages. [1]

1. A word of broad significance which may not readily be defined with accuracy.  Jamison v Encarnacion, 281 US 635, 74 L Ed 10.2, 50 S Ct 440.

The lack of due diligence or care.  A wrong characterized by the absence of a positive intent to inflict injury but from which injury nevertheless results. Haser v Maryland Casualty Co. 78 ND 893, 53 NW2d 508, 33 ALR 1018.

In the legal sense, a violation of the duty to use care. Fort Smith Gas Co. v Cloud (CA8 Ark) 75 F2d 413, 97 ALR 833.

The failure to perform an established duty which proximately causes injury to the plaintiff.  Northern Indiana Transit v Burk, 228 Ind 162, 89 NE2d 905, 17 ALR2d 572.

The failure to exercise the degree of care demanded by the circumstances; the want of that care which the law prescribes under the particular circumstances existing at the time of the act or omission which is involved.  The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do.  38 Am J1st Negl § 2.

More particularly, the failure of one owing a duty to another to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such person would not have done, which omission or commission is the proximate cause of injury to the other 38 Am J1st Negl § 2.

A negligent act is one from which an ordinarily prudent person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.  Haralson v Jones Truck Lines, 223 Ark 813, 270 SW2d 892, 48 ALR2d 248.

What constitutes “operation” or “negligence in operation” within statute making owner of motor vehicle liable for negligence in its operation.  Anno: l3 ALR2d 378. [2]

1. The failure to do something that a reasonable person would do in the same circumstances, or the doing of something a reasonable person would not do.  Negligence is a wrong generally characterized by carelessness, inattentiveness, and neglectfulness rather than by a positive intent to cause injury. [3]

     Excerpt from Baron Patrick Devlin’s The Enforcement of Morals (1968):

     “Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safety of others.” [4]

    Excerpt from W. Page Keeton’s Prosser & Keeton on the Law of Torts (5th ed. 1984):

     “During the first half of the nineteenth century, negligence began to gain recognition as a separate and independent basis of tort liability.  Its rise coincided in a marked degree with the industrial Revolution; & it very probably was stimulated by the rapid increase in the number of accidents caused by industrial machinery, & in particular by the invention of railways.  It was greatly encouraged by the disintegration of the old forms of action, and the disappearance of the distinction between
direct and indirect injuries, found in trespass and case… Intentional injuries, whether direct or indirect, began to be grouped as a distinct field of liability, and negligence remained as a distinct field of liability, and negligence remained as the main basis for unintended torts. Negligence thus developed into the dominant cause of action for accidental injury in this nation today.” [5]

     id. at 16973:

     “Negligence is a matter of risk — that is to say, of recognizable danger of injury….  In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. But it may also arise where the negligent party has considered the possible consequences carefully, and has exercised his own best judgment. The almost universal use of the phrase ‘due care’ to describe conduct which is not negligent should not obscure the fact that the essence of negligence is not necessarily the absence of solicitude for those who may be adversely affected by one’s own actions but is instead behavior which should be recognized as involving unreasonable danger to others.” [6]

Related Terms:

reasonable person test – a hypothetical person used as a legal standard, especially to determine if someone acted with negligence.

Varying Degrees of Negligence:

degrees of negligencetypically divided into “simple,” “ordinary,” “gross,” or “slight” negligence:

ordinary negligence – failure to exercise the degree of care that a reasonably prudent person would have exercised in similar circumstances; failure to use ordinary care or due care.

  • ordinary (reasonable) care – the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances.
  • (due) diligence – persevering effort to accomplish one’s business, duty, etc.

“gross” aka “criminal” negligence – conscious, wanton disregard or the probability that death or injury will result from the willful creation of an unreasonable risk. — aka culpable negligence; reckless negligence; wanton negligence; willful negligence; willful and wanton negligence; willful and wanton misconduct; hazardous negligence; magna neglegentia.

slight negligence – failure to exercise the degree of care expected of an extraordinarily prudent person, resulting in liability in special circumstances (esp. those involving bailments or carriers).

Additional Classifications of Negligence:

active negligence (1875) Negligence resulting from an affirmative or positive act, sue as driving through a barrier.  Cf. passive negligence.

advertent negligence (1909) Negligence in which the actor is aware of the unreasonable risk that he or she is creating; RECKLESSNESS. — aka willful negligence; supine negligence.

inadvertent negligence (18c) Negligence in which the actor is not aware of the unreasonable risk that he or she is creating, but should have foreseen and avoided it. — aka simple negligence.

casual negligence (1812) A plaintiff’s failure to (1) pay reasonable attention to his or her surroundings, so as to discover the danger created by the defendant’s negligence, (2) exercise reasonable competence, care, diligence, and skill to avoid the danger once it is perceived, or (3) prepare as a reasonable person would to avoid future dangers.

collateral negligence (11874) An independent contractor’s negligence, for which the employer is generally not liable.  See COLLATERAL-NEGLIGENCE DOCTRINE.

concurrent negligence (1831) The negligence of two or more parties acting independently but causing the same damage.  Cf. joint negligence.

Assessing Liability in Negligence Cases:

comparative negligence (doctrine) – reduces a plaintiff’s recovery proportionally to the plaintiff’s degree of fault in causing the damage, rather than barring recovery completely. — aka comparative fault.

 

imputed contributory negligence (1880) Contributory negligence that can be vicariously transferred between parties, such as employee and employer.

imputed negligence (18c) Negligence of one person charged to another; negligence resulting from a party‘s special relationship with another party who is originally negligent –so that, for example, a parent might be held responsible for some acts of a child.

joint negligence (18c) The negligence of two or more persons acting together to cause an accident.  Cf. concurrent negligence.

malpractice – negligence or incompetence on the part of a professional (i.e. by an attorney or physician). — aka professional negligence.

 

passive negligence (18c) Negligence resulting from a person’s failure or omission in acting, such as failing to remove hazardous conditions from public property.  Cf. active negligence.


subsequent negligence (1827) The negligence of the defendant when, after the defendant’s initial negligence and the plaintiff’s contributory negligence, the defendant discovers —-or should have discovered — that the plaintiff was in a position of danger and fails to exercise due care in preventing the plaintiff’s injuries. — aka supervening negligence.  See LAST-CLEAR-CHANCE DOCTRINE.

  • last-clear-chance doctrine(1904) Torts. The rule that a plaintiff who was contributorily negligent may nonetheless recover from the defendant if the defendant had the last opportunity to prevent the harm but failed to use reasonable care to do so (in other words, if the defendant’s negligence is later in time than the plaintiff’s).  *  This doctrine allows the plaintiff to rebut the contributory-negligence defense in the few jurisdictions where contributory negligence completely bars recovery. — aka discovered-peril doctrine; humanitarian doctrine; last-opportunity doctrine; subsequent-negligence doctrine; last-opportunity doctrine; subsequent-negligence doctrine; supervening-negligence doctrine; doctrine of ultimate negligence; doctrine of discovered peril; doctrine of subsequent negligence.

tax negligence (1956) Negligence arising out of the disregard of tax-payment laws, for which the Internal Revenue Service may impose a penalty ~5% of the amount underpaid. IRC (26 USCA) § 6651(a).

willful negligence – 1. See advertent negligence. 2. See gross negligence.

negligence rule (1914) Commercial law. The principle that if a party’s negligence contributes to an unauthorized signing or a material alteration in a negotiable instrument, that party is estopped from raising this issue against later parties who transfer or pay the instrument in good faith.  *  Examples of negligence include leaving blanks or spaces on the amount line of the instrument, erroneously mailing the instrument to a person with the same name as the payee, and failing to follow internal procedures designed to prevent forgeries.

negligent adj. (14c) Characterized by a person’s failure to exercise the degree of care that someone‘of ordinary prudence would have exercised in the same circumstance <the negligent driver went through the stop sign> <negligent construction caused the bridge to collapse>. negligently, adv.

     Excerpt from H.L.A. Hart’s “Negligence, Mens Rea and Criminal Responsibility,” in Punishment and Responsibility (1968):

    “[A] careful consideration is needed of the differences between the meaning of expressions like ‘inadvertently’ and ‘while his mind was a blank’ on the one hand, and ‘negligently’ on the other. In ordinary English, and also in lawyers’ English, when harm has resulted from someone’s negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame oi mind in which he acted. ‘He negligently broke a saucer’ is not the same kind of expression as ‘he inadvertently broke a saucer.’ The point of the adverb ‘inadvertently’ is merely to inform us of the agent’s psychological state, whereas ii We say ‘He broke it negligently’ we are not merely adding to this an element of blame or reproach, but something quite Specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word ‘negligently,’ both in legal and in non-legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like ‘his mind was a blank. [14]

negligent act See ACT.

negligent conversion See technical conversion under CONVERSION (2).

negligent entrustment (1944) The act of leaving a dangerous article (such as a gun or car) with a person who the lender knows, or should know, is likely to use it in an unreasonably risky manner.

negligent escape See ESCAPE (3).

negligent hiring (1915) Torts. An employer’s lack of care in selecting an employee who the employer knew or should have known was unfit for the position, thereby creating an unreasonable risk that another person would be harmed.

negligent homicide See HOMICIDE.

negligent infliction of emotional distress (1970) The tort of causing another severe emotional distress through one’s negligent conduct.  *  Most courts will allow a plaintiff to recover damages for emotional distress if the defendant’s conduct results in physical contact with the plaintiff or, when no contact occurs, if the plaintiff is in the zone of danger. — Abbr. NIED. See emotional distress under msrmzss (4); zone OF-DANGER RULE. Cf. INTENTIONAL INFLICTION or EMOTIONAL DISTRESS.

negligent manslaughter See involuntary manslaughter under MANSLAUGHTER

negligent misrepresentation See MISREPRESENTATION.

negligent nondisclosure See nonmscwsune. negligent offense. See OFFENSE (2).

neglect n. (16c) 1. The omission of proper attention to a person or thing, whether inadvertent, negligent, or willful; the act of treating someone or something needlessly or inattentively.  2. Family law. The failure to give proper attention, supervision, or necessities, especially to a child, to such an extent that harm results or is likely to result. Cf. ABUSE. -neglect, vb.

     “‘Neglect’ is not the same thing as ‘negligence.’  In the present connection the word ‘neglect’ indicates, as a purely objective fact, that a person has not done that which it was his duty to do; it does not indicate the reason for this failure. ‘Negligence,’ on the other hand, is a subjective state of mind, and it indicates a particular reason why the man has failed to do his duty, namely because he has not kept the performance of the duty in his mind as he ought to have done. A man can ‘neglect’ his duty either intentionally or negligently.” J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 108 n.1 (16th ed. 1952).

child neglect (1930) The failure of a person responsible for a minor to care for the minor’s emotional or physical needs.  *  Child neglect is a form of child abuse. Local child-welfare departments investigate reports of child neglect. In a severe case, criminal charges may be filed against a person suspected of child neglect.

culpable neglect (18c) Censurable or blameworthy neglect; neglect that is less than gross carelessness but more than the failure to use ordinary care.

developmental neglect (1984) Failure to provide necessary emotional nurturing and physical or cognitive stimulation, as a result of which a child could suffer from serious developmental delays.

educational neglect (1853) Failure to ensure that a child attends school in accordance with state law.

excusable neglect (1855) A failure which the law will excuse ~–to take some proper step at the proper time (esp. in neglecting to answer a lawsuit) not because of the party’s own carelessness, inattention, or willful disregard of the court’s process, but because of some unexpected or unavoidable hindrance or accident or because of reliance on the care and vigilance of the party’s counsel or on a promise made by the adverse party.

inexcusable neglect (18c) Unjustifiable neglect; neglect that .Implies more than unintentional inadvertence.  *  A finding ofmexcusable ne lect in, for example, failing to flle an answer to a comp aint will prevent the setting asrde of a default judgment.

medical neglect (1818) Failure to provide medical, dental, or psychiatric care that is necessary to prevent or to treat serious physical or emotional injury or illness. 0 In determining whether a parent’s refusal to Consent to medical treatment is neglectful, courts use any of three approaches: (1) an ad hoc test, (2) a best-interests-of-the-child test, or (3) a balancing test that weighs the interests of the parents, the child, and the state. Cf. FAITH-HEALING EXEMPTION.

physical neglect (1873) Failure to provide necessaries, the lack of which has caused or could cause serious Injury or illness.

willful neglect (18c) Intentional or reckless failure to carry out a legal duty, especially in caring for a child.

neglected child – See CHILD.

neglectful adj. (16c) not looking after someone or something properly; not giving enough attention; CARELESS (1).

neglect hearing See HEARING.

neglegentia n. [Latin] Roman law. Carelessness; Inattentive omission.  *  Neglegentia can be of varying degrees, which may or may not result in actionable liability. — Also spelled negligentia. See CULPA (1). Cf. DILIGENTIA. ‘

     “ln the sources negligentia is tantamount to culpa, and Similarly graduated (magna, lata negligentia). Precision in terminology is no more to be found here than in the field of culpa. One text declares . . . ‘gross negligence (magna negllgentia) is culpa, magna culpa is dolus’; another says: ‘gross negligence (dissoluta negligentia) is near to dolus (prope datum). In the saying ‘lata culpa is exorbitant (extreme) negligence, j.e., not to understand (intelligere) what all understand . . . negligentia is identified with ignorance.” Berger, Encyclopedic Dictionary of Roman Law 593

lata neglegentia – Extreme negligence resulting from an unawareness of something that the actor should have known. [1]

negligence as a matter of law – An undisputed fact or facts, so conclusive of negligence m conductor omission in violation of a standard of care which is clear in its requirements and in its application to the case, that there is no question to be submitted to the jury and the court must declare that negligence is established. 38 Am J1st Negl § 344. [2]

negligence in law  – (1843) 1. Failure to observe a duty imposed bylaw. See negligence per se. [1]  1. A breach of the duty to use care; the failure to observe a duty established by law which proximately causes injury to the plaintiff.  See proximate cause. 2. Negligence per se. [3]

negligence of bailee – The failure of a bailee to exercise that degree of diligence and care in respect to the property in his possession under the bailment which the natUre of his employment, the character of the bailment, and the attendant circumstances make it reasonable to expect of him. 8 Am J2d Bailm § 198.

negligence per se (1841) 1. Negligence established as a matter of law, so that breach of the duty is not a jury question. 0 Negligence per se usu. arises from a statutory violation. -Also termed legal negligence. [1]  1. Literally, that which is negligence in itself. Negligence without question, negligence involving no debatable issue as to its existence, because the law, ordinarily the law in the form of statute or ordinance, has established the duty of the defendant toward the plaintiff which has been violated by the defendant to the injury of the plaintiff. 38 Am J1st Negl § 158. Negligence per se results from a breach of a positive standard of conduct imposed by statute. Lavalle v Kaupp, 240 Minn 360, 61 NW2d 223. [2]  1. Negligence that is beyond debate because the law, usually a statute or ordinance, has established a duty or standard of care that the defendant has violated, as a result of which he has caused injury to the plaintiff. EXAMPLE: failure to stop at a stop sign, as required by law, which is the proximate cause of injury to another driver or a pedestrian.
     See per se. See also absolute liability; negligence in law; strict liability.

negligent – Being guilty of negligence. [2] 1. Being responsible for an act of negligence. [3]

negligent escape – An escape occurring without the consent of, but through the carelessness of, the officer entrusted with the custody of the prisoner. Adams v Turrentine, 30 NC (8 Ired L) 147, 150.

negligent homicide – Causing the death of a person, without apparent intent to kill, but in doing an unlawful act or performing a lawful act in a careless or negligent manner, the danger of causing death being apparent. Barfield v State, 118 Tex Crim 394, 43 SW2d 106. The offense under modern statutes of the Operation of a motor vehicle in reckless disregard of the safety of others, thereby causing the death of another. 7 Am J2d Auto § 291. Gross or culpable negligence in operating or driving a vehicle of any kind whereby a person is killed. 7 Am J2d Auto § 292.
See manslaughter.

negligentia Civil law. Negligence; carelessness.

Negligentia semper habet infortunium comitem – Negligence always has misfortune for a cornrade.

negligent waste Same as permissive waste. [2]


 

   Compare reckless; willful and wanton negligence.
     See also actionable negligence; active negligence; comparative negligence; concurrent negligence; contributory negligence; criminal negligence; culpable negligence; degrees of negligence; gross negligence; imputed negligence; joint negligence; legal negligence; ordinary negligence; passive negligence; simple negligence; slight negligence; subsequent negligence; supervening negligence; wanton negligence; willful negligence. [3]

References:

Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Baron Patrick Devlin, The Enforcement of Morals 36 (1968)

[5]: W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 28, at 161 (5th ed. 1984)

[6]: id. at 16973

 

[14]: H.L.A. Hart, “Negligence, Mens Rea and Criminal Responsibility,” in Punishment and Responsibility 136, 147-48 (1968).

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