{"id":12881,"date":"2018-02-01T14:19:47","date_gmt":"2018-02-01T14:19:47","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=12881"},"modified":"2018-03-08T19:21:45","modified_gmt":"2018-03-08T19:21:45","slug":"negligence","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=12881","title":{"rendered":"negligence – failure to exercise the standard of care that a reasonable person would have exercised"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from<\/span> Civil Law Self-Help<\/a> >>>><\/span> Section 1;\u00a0<\/a>Torts, Breach of Contract, and Assessing Liability<\/em><\/a> >>>><\/span> Torts<\/a> >>>><\/span> Basic Classifications of Torts<\/a> >>>><\/span> Negligent Tort<\/a>:<\/span><\/span><\/strong><\/p>\n

************************<\/span><\/p>\n

negligence<\/span>:<\/span><\/strong><\/span>
\n n<\/em>. (14c.)<\/span><\/p>\n

1. The failure to exercise the standard of care that a<\/span> reasonably prudent person<\/a> would have\u00a0<\/strong>exercised in a similar situation; any conduct that falls below the legal standard established to protect\u00a0<\/strong>others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or\u00a0<\/strong>willfully disregardful of another’s rights; the doing of what a reasonable and prudent person<\/a> would not\u00a0<\/strong>do under the particular circumstances, or the failure to do what such a person would do under the\u00a0<\/strong>circumstances.\u00a0 The elements necessary to recover damages for negligence are<\/strong><\/span><\/p>\n

1.) the existence of a\u00a0<\/strong>duty on the part of the defendant to protect the plaintiff from the injury complained of
\n<\/strong>2.) an injury to\u00a0<\/strong>the plaintiff from the defendant’s failure.<\/strong><\/span><\/p>\n

The term denotes culpable carelessness.\u00a0 The Roman-law\u00a0<\/strong>equivalents are culpa<\/em> and neglegentia<\/em>, as contrasted with dolus<\/em> (wrongful intention). \u2014\u00a0 <\/strong>aka<\/span>\u00a0<\/strong>actionable negligence<\/strong><\/em><\/span>; ordinary negligence<\/strong><\/em><\/span>; simple negligence<\/strong><\/em><\/span>.<\/span><\/p>\n

2. A tort grounded in this failure,\u00a0<\/strong>usually expressed in terms of the following elements: duty , breach of duty, causation, and damages. <\/strong>[1]<\/span><\/p>\n

1. A word of broad significance which may not readily be defined with accuracy.\u00a0 Jamison v Encarnacion<\/em>, 281 US 635, 74 L Ed 10.2, 50 S Ct 440<\/span>. <\/span><\/strong><\/p>\n

The lack of due diligence or care.\u00a0 A wrong characterized by the absence of a positive intent to inflict injury but from which injury nevertheless results. Haser v Maryland Casualty Co<\/em>. 78 ND 893, 53 NW2d 508, 33 ALR 1018<\/span>. <\/span><\/strong><\/p>\n

In the legal sense, <\/span>a violation of the duty to use care. Fort Smith Gas Co. v Cloud<\/em> (CA8 Ark) 75 F2d 413, 97 ALR 833<\/span>. <\/span><\/strong><\/p>\n

The failure to perform an established duty which proximately causes injury to the plaintiff.\u00a0 Northern Indiana Transit v Burk<\/em>, 228 Ind 162, 89 NE2d 905, 17 ALR2d 572<\/span>. <\/span><\/strong><\/p>\n

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.\u00a0 The omission to do something which a reasonable man<\/a>, guided by those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man<\/a> would not do.\u00a0 38<\/span><\/span>\u00a0Am J1st Negl \u00a7 2<\/span>. <\/span><\/strong><\/p>\n

More particularly, the failure of one owing a duty to another to do what a reasonable and prudent person<\/a> 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 \u00a7 2<\/span>.<\/span><\/strong><\/p>\n

A negligent act is one from which an ordinarily prudent person<\/a> 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.\u00a0 Haralson v Jones Truck Lines<\/span><\/em>, 223 Ark 813, 270 SW2d 892, 48 ALR2d 248<\/span>.<\/span><\/strong><\/p>\n

What constitutes \u201coperation\u201d or \u201cnegligence in operation\u201d within statute making owner of motor <\/span>vehicle liable for negligence in its operation.\u00a0 Anno: l3 ALR2d 378<\/span>. <\/span><\/strong>[2]<\/span><\/p>\n

1. The failure to do something that a reasonable person<\/a> would do in the same circumstances, or the doing of something a reasonable person would not do.\u00a0 Negligence is a wrong generally characterized by carelessness, inattentiveness, and neglectfulness rather <\/span><\/strong>than by a positive intent to cause injury<\/strong>. [3]
\n<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Baron Patrick Devlin’s<\/span>\u00a0The Enforcement of Morals<\/em><\/a>\u00a0(1968):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cNegligence in law ranges from inadvertence that is hardly more\u00a0<\/span><\/strong>than accidental to sinful disregard of the safety of others.<\/span>\u201d\u00a0<\/strong>[4]<\/span><\/p>\n

\u00a0 \u00a0 Excerpt from\u00a0W. Page Keeton’s\u00a0Prosser & Keeton on the Law of Torts<\/em><\/a>\u00a0(5th ed. 1984):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cDuring the first half of the nineteenth century, negligence began\u00a0<\/span><\/strong>to gain recognition as a separate and independent basis of tort liability.\u00a0 Its\u00a0<\/strong>rise coincided in a marked degree with the industrial Revolution; & it\u00a0<\/strong>very probably was stimulated by the rapid increase in the number of\u00a0<\/strong>accidents caused by industrial machinery, & in particular by the\u00a0<\/strong>invention of railways.\u00a0 It was greatly encouraged by the disintegration of\u00a0<\/strong>the old forms of action, and the disappearance of the distinction between<\/strong><\/span><\/span>
\n direct and indirect injuries, found in trespass and case… Intentional injuries,\u00a0<\/strong>whether direct or indirect, began to be grouped as a distinct field of\u00a0<\/strong>liability, and negligence remained as a distinct field of liability, and <\/strong>negligence remained as the main basis for unintended torts. Negligence\u00a0<\/strong>thus developed into the dominant cause of action for accidental injury in\u00a0<\/strong><\/span>this nation today.<\/span>\u201d\u00a0<\/strong>[5]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0id. at 16973:<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cNegligence is a matter of risk \u2014 that is to say, of recognizable\u00a0<\/span><\/strong>danger of injury….\u00a0 In most instances, it is caused by heedlessness or\u00a0<\/strong>inadvertence, by which the negligent party is unaware of the results\u00a0<\/strong>which may follow from his act. But it may also arise where the negligent\u00a0<\/strong>party has considered the possible consequences carefully, and has\u00a0<\/strong>exercised his own best judgment. The almost universal use of the phrase\u00a0<\/strong>‘due care’ to describe conduct which is not negligent should not obscure\u00a0<\/strong>the fact that the essence of negligence is not necessarily the absence of\u00a0<\/strong>solicitude for those who may be adversely affected by one’s own actions\u00a0<\/strong>but is instead behavior which should be recognized as involving\u00a0<\/strong><\/span>unreasonable danger to others.<\/span>\u201d\u00a0<\/span><\/strong>[6]<\/span><\/span><\/p>\n

Related Terms:<\/strong><\/span><\/p>\n

reasonable person test<\/span><\/a> – a hypothetical person used as a legal standard, especially to determine if someone acted with negligence.<\/span><\/strong><\/span><\/p>\n

Varying Degrees of Negligence:<\/span><\/strong><\/p>\n

degrees of negligence<\/span><\/a> – typically<\/em> divided into “simple,” “ordinary,” “gross,” or “slight” negligence:<\/span><\/strong><\/p>\n

ordinary negligence<\/span><\/a> – 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.<\/strong><\/span><\/p>\n