Explaining the Law of Tort Negligence

In layman’s terms, negligence is the failure to exercise ordinary care either via an action or omission. Negligence that is a breach or violation of Tort law occurs when a person does not take the appropriate care that would be expected of a reasonable person or someone commits an action that a reasonable person would not commit.

To give an example of negligence, in a personal injury claim, negligence is often the claim made when filing a law suit. A personal injury law suit that is the result of an event that causes injury or personal loss is frequently based on the plaintiff’s theory that the defendant was negligent in some way. Negligence laws vary from state to state and it is always advisable to check out the relevant and specific laws for certain jurisdictions.

What is proximate cause?

If the plaintiff’s injury is a result of negligent conduct that would have caused a natural and probable injury, this where proximate cause exists. The plaintiff must prove that the defendant is liable for negligence and that proximate cause can be proven.

The law refers to the defendant’s conduct as “a proximate cause” of an accident, rather than “the proximate cause.” Accidents can have more than one proximate cause. It is not necessary for the defendant’s negligence to be the only proximate cause or the last proximate cause. The defendant could be liable where there are several proximate causes. The plaintiff can claim a cause of action against two or more defendants by proving that these actions were proximate causes of the plaintiff’s injury.

To give an example of how this would work is: the plaintiff is driving through the streets and is suddenly cut off by someone who runs a red light. Meanwhile there is a driver behind the plaintiff who is not paying attention and slams into the back of the plaintiff’s car. This happens because the plaintiff slams on the brakes to avoid the car running the red light and the car behind hits the plaintiff from behind. The plaintiff in this scenario may be able to take action against both drivers for the accident and subsequent injuries because they were both negligent in this situation. Even though both negligent acts are independent of each other, they are likely both a proximate cause of the injury.

*What Makes A Negligent Action?

To prove that a negligent action is the result of an injury, the following four facts must be present in the evidence. This is called a “preponderance of the evidence.”

*The defendant has a duty toward the plaintiff

*That duty was violated by the defendant;

*The plaintiff suffered an injury as a result of the defendants violation of that duty, and;

*The injury occurring because of the defendant’s actions’ was a likely outcome.

For example, anyone in control of a car has a general duty to conduct themselves on the roads in a safe and responsible way. Running a red light is not safe and not responsible and the driver has violated their duty to drive safely. It is foreseeable that running a red light would possibly cause an accident, and the driver will be responsible for their negligent actions should any injuries arise from the accident.

*What Is Gross Negligence?

Gross negligence means behavior or a failure to act that is so reckless that it expresses a significant lack of concern for whether an injury will result. Sometimes “gross negligence” might be required in a case to overcome a legal impediment in a law suit. For example; an employee who has shown negligent behavior may be immune to discipline from “ordinary negligence” however they may be liable for gross negligence.

Gross negligence could be argued in the case of a defendant who is knowingly breaching safety measures and gaining a profit. If the company’s management staff knows that their business practices are unsafe, no contract or release that has been signed will protect them. Gross negligence could be argued as the company are well aware of the safety issue, yet choose to take no action to remedy the matter.

*Children and Negligence

Children are held to a different standard than adults. For example, if a minor is negligent might be evaluated against what a reasonably careful person of the same age, intellectual ability and background would do. Very young minors (children of seven years old and under this age) are typically presumed to be too young to reasonably deduce what is negligent and exercise a duty of care.

In most jurisdictions, it is assumed that minors act according to their childish impulses and behaviors. Defendants would therefore be expected to exercise more care when they are aware there are children in the area. Even if the defendant knew of the likelihood of children being present, they would be expected to be vigilant in terms of care. It would be expected that if a person is driving past an unfenced park or football ground where many children play, that they would be on the look out for a child running onto the road.

*What Is Comparative Negligence?

Comparative negligence is when the plaintiff’s responsibility for their injuries comes into play. If it is discovered during the case that the plaintiff is at some fault for their injuries it is then figured out what percentage is the defendant’s responsibility. If for arguments sake a plaintiff is awarded $100,000 in damages, and it is found that the plaintiff is 30% responsible for the injuries occurring then he or she will receive damages of $60,000.

*What Is Contributory Negligence?

“Contributory negligence” is applied to any case where it is found that the plaintiff contributed to their injuries in some way, the plaintiff will be unable to receive any damages. The consequences of this approach has seen it be limited or abandoned in many jurisdictions. One historic limitation is to examine the circumstances of an accident to see who had the “last clear chance” to avoid the accident from happening. If it is found that the defendant had the “last clear chance” to avoid the accident the chances of the defendant having to pay damages are pretty good, if it is found that the plaintiff had the “last clear chance” then there is every chance the case could be dismissed.

*What Is Vicarious Liability?

Vicarious liability can occur when someone is held responsible for another person’s negligent behavior. This will sometimes apply in the case of an employer who might be responsible for an employee. For example if the employee gets into an accident in the employers vehicle that has faulty brakes, then the employer is liable for any injuries resulting from that accident given they are responsible for seeing the vehicle is roadworthy and safe.

Parents can often be held responsible for the negligent acts of their child under the term vicarious liability. However; many states have limited these laws and some have all but eliminated them.

It is difficult to provide a straightforward explanation into what constitutes negligence as there are many factors that can come into play. The factors that decide whether negligence has occurred are determined by investigating all sides of the situation. A preponderance of the evidence is required to check that all four facts can be proven. Whether negligence has occurred will depend on the individual circumstances of the accident and how the injuries happened. This can only be decided once all the facts have been analyzed in the case.