How Negligent! (Using “Negligence” Incorrectly)

December 9th, 2009. By Kristine B

We’ve all heard the word “negligence” to describe someone’s actions or used as justification for a lawsuit. And we all probably even know some individuals we’d refer to as “negligent”. But, do you really know what negligence is and how it applies to the law? This week, Pleading Ignorance examines negligence: what it is, what it’s not and how it applies to the law. 

What is Negligence? 

Negligence is a person’s failure to use reasonable care. This can take two forms: either the failure to take action that a reasonable person would do, or doing something that a reasonable person would not do. In both cases, the responsible party’s actions result in some form of harm either to another person or to another person’s property. 

Both types of negligence can be seen in your average car crash. In the first—failure to take action that a reasonable person would—a negligent person might not ensure his vehicle is properly equipped with tires suited for extreme weather. Or, the negligent person might know that his vehicle is unsafe but not take his vehicle in for the proper repairs. 

In the second type of negligence—doing something a reasonable person would not do—the negligent person might continue to drive too fast for extreme weather conditions. Or, she might continue to talk on her cell phone even though the road conditions are poor. 

In both cases, the responsible party is compared to what a reasonable person in the same situation would do. The law assumes that a reasonable person would, knowing that the weather could turn bad, ensure he has proper tires on his car or ensure his car is road-worthy. Likewise, the law assumes that a reasonable person would slow down for extreme road conditions or focus on the road and not the cell phone conversation.  

You say Negligence, I say Carelessness….what’s the diff?

Negligence is not exactly the same thing as carelessness—oh, they’re cousins, but they’re not necessarily interchangeable. 

Why? Well, a person could be taking a great deal of care in his actions but still not be as diligent as possible (negligence!). For example—and this is hypothetical and not loaded with all the possible mitigating factors—a person driving a car could be incredibly careful, following the posted speed limit and remaining a safe distance behind the vehicle in front of her. Despite all her care, she could become momentarily distracted by her cell phone ringing—see that its her infant’s child care provider—and decide to answer the phone. While distracted, she may rear-end the driver ahead of her, who has stopped suddenly. 

Because she had been taking many precautions—and many mom’s in the same situation would’ve responded similarly—she is not entirely careless. However, she could still be considered negligent for answering the cell phone and causing the accident as most reasonable people would know they should pull over before hitting that “TALK” button. 

Carelessness can get a little complicated because legal folks speak in terms of degrees of care—there’s slight care, due care, reasonable care, ordinary care, great care. A lot of care. But the one that’s probably relied on the most in a court of law is reasonable care. Why? Because it takes a specific situation or act done by a person and compares it to similar people in the same situation and what they would have reasonably done.

Furthermore, negligence requires that the responsible party owe a duty of care to the injured party or to the general public. A person can be careless without actually owing a duty of care. 

Now, a person can be negligent and careless at the same time (hello, DUI). The two are not mutually exclusive. However, it’s possible to be careless but not negligent. It’s also possible to be negligent but not entirely careless. 

Product Negligence

Negligence as it applies to consumer products also does not mean that a product is free from causing any injury. It only means that the product is not unreasonably dangerous. For example, just because a person cuts herself with a knife does not mean that the knife-maker was negligent in the design of the knife (uhh, anyone thinking NRA here? “it’s not the guns that kill people, people kill people”). Knives are sharp and accidents do happen—I’ve got the scars to prove it. However, if the blade was manufactured so that it was more likely than other knives to cause injury, then the manufacturer could be guilty of negligence. 

Negligence in the Law 

There are four steps to proving negligence. To be successful, the plaintiff must prove that: 

1) The defendant had a duty of care 

2) The defendant did not meet that duty of care 

3) The plaintiff suffered harm that a reasonable person in the defendant’s position could have foreseen 

4) The damage was caused by a breach of the duty of care

So, let’s take the example of a car accident again. In this case, Person A runs through a stop sign, hitting Person B in the intersection and causing injury to Person B and her car. Person A owes a duty of care to all other drivers on the road—that duty of care being to follow the rules of the road and take necessary steps to avoid a car accident. By running the stop sign without stopping, Person A breached the duty of care. A reasonable person could see that running a stop sign might result in a car accident and might cause harm to another individual. Since Person B’s injury and the damage to Person B’s vehicle was directly caused by the accident, Person A is negligent in causing the accident. 

Of course, negligence does not just apply to motor vehicle accidents. It applies to any situation where there is a duty of care owed to another individual or group. Doctors, employers, store owners, landlords… anyone can be guilty of negligence if he or she fails to take act in a way that a reasonable person would act.

Tags: Negligence, Pleading Ignorance

This was posted on Wednesday, December 9th, 2009 at 7:10 pm and is filed under Pleading Ignorance . Feel free to respond, or trackback. Read our comments policy.