Negligence refers to a person’s unintentional failure to meet a standard of care imposed by law. It encompasses carelessness, inattention, and omissions when the law requires a party to act. Breaches of these legal standards become negligence claims when victims suffer personal injury, property damages, or other damages.
Negligence claims require proof that the defendant owed you a legal duty, breached it, and caused your injuries in a manner that the defendant knew or should have foreseen would happen.
The Duty
As a threshold question, a judge must decide in a negligence case if the defendant owed the injured person a duty of care. This makes the presence of a legal duty to you a question of law rather than one of fact.
Generally, the duty to act carefully under the circumstances arises in the performance of any activity. For example, someone lifting an object must take reasonable steps to prevent the object from falling on someone. Operators of cranes, forklifts, bicycles, vehicles, and other equipment must do so safely. You will find the duty of reasonable care arising in commercial, recreational, journalistic, commercial, professional, and a host of other activities.
Legal duty has its limits, often turning on the status of the injured party or the would-be tortfeasor:
- Trespassers and Premises LiabilityLandowners must keep premises reasonably safe for lawful occupants. In this group are customers, patrons, hotel guests, and those otherwise invited (either expressly or by invitation) by the owner. This rule normally excludes trespassers from premises liability claims. However, landowners may face responsibility for injuries to child trespassers injured by attractive nuisances. These include playgrounds, ponds, holes, and swimming pools.
- Law Enforcement Officers: Police officers, sheriff’s deputies, and highway patrol officers do not face liability for the negligent performance of their duties to the public. As a general rule, the “public duty doctrine” bars claims against officers and law enforcement agencies for the failure to determine that someone is a suspect in a crime or to arrest someone. That law enforcement officers owe the duty to crime prevention and promoting safety to the public at large rather than a specific party underlies the public duty doctrine.
To avoid the effect, you must prove that either the officer assumed a special duty or relationship with you. Such special duties or relationships arise when an officer or agency undertakes to provide security for a particular event or person. For instance, witnesses in protective custody may sue for the negligent failure of officers to protect them against those wishing to prevent their testimony or cooperation. Special relationships often involve officers providing security to a particular event.
- “Good Samaritans”: By default, a private individual who volunteers to rescue or render aid would face liability for negligence arising from such actions. Thanks to “Good Samaritan” statutes, those who come to another’s aid in an emergency escape negligence claims.
As a related matter, the law generally imposes no duty upon a private citizen to rescue or assist another. Thus, you could not sue a bystander who does not take reasonable steps to prevent an attack on you, pull you from a fire, or rescue you or a loved one in danger of drowning. Lifeguards, rescue personnel, and others hired to provide emergency care owe you a duty of reasonable care in the performance of their jobs.
The Standard and Its Breach
At its core, negligence consists of a party’s failure to exercise reasonable care under the circumstances. What makes an act unreasonable and, thus, a breach of the duty of care is often fact-intensive. Jurors normally have the ultimate say in whether a party acts reasonably.
In this determination, negligence law applies the “reasonable person” standard. This takes into account a defendant’s past experiences, prior knowledge, and what a person of average intelligence or fund of knowledge would know. A defendant can violate the “reasonable person” standard by failing to observe matters of common knowledge. As an example, a reasonable person should perceive the difference between the smell or scent of a clear beverage and cleaning solutions before serving the latter to diners.
Courts and jurors might weigh the risk and level of harm against the burden of taking a particular precaution. Construction activities conducted without due care can cause serious injuries given the use of saws, drills, forklifts, cranes, hammers, concrete, and wood or metal beams. Those who engage in building products must pay considerable attention and act with considerable caution. Contractors and owners of construction sites likely need warning signs and barriers to keep bystanders or others away from these supplies and equipment.
Negligence Per Se
Common law negligence involves weighing benefits, costs, risks of injury, and the knowledge (actual or implied) of actors. Negligence per se focuses upon standards set by statutes, codes, rules, and regulations intended to protect people’s safety. If you are injured by a defendant’s violation of a statute, rule, or code enacted to protect you or others in your class, then you can establish that the defendant acted negligently.
Negligence per se features prominently in motor vehicle accidents. Common violations of traffic statutes and rules include:
- Exceeding the posted speed limits
- Driving while impaired by alcohol or other drugs, including prescription ones
- Texting or using a smartphone while driving
- Turning or changing lanes without using a turn signal
- Following a vehicle too closely
- Failing to reduce speed to avoid a wreck
Commercial truck drivers may be negligent per se by driving beyond the maximum hours for a given time interval, not inspecting a truck before driving, and not loading or securing cargo. The Federal Motor Carrier Safety Act contains a number of standards for commercial vehicle operators.
Statutes and codes also regulate the condition of commercial, business, industrial, and public establishments. You might have a negligence per se claim against property owners for the statutory violations such as:
- Not enclosing an above-ground pool with a fence of a height and material required by statute or code
- Lack of required exit signs, fire extinguishers, and other fire suppression equipment and materials
- Insecure handrails or handrails not meeting a particular width
- Inadequate lighting in hallways, aisles, and common areas
Professional Negligence
The standard of care for professionals such as physicians and pharmacists is shaped by specialized skills and knowledge expected of those in the professions. As such, negligence by professionals extends beyond the ordinary negligence found in motor vehicle wrecks and slip and falls.
Medical malpractice cases involve personal injury claims arising from a doctor or health professional’s failure to exercise the standards of care found in that professional’s community. The standard accounts for standards expected of professions across the board and the specific limitations on technology and resources in certain locations, including rural areas.
Medical mistakes may include improper prescriptions, unnecessary surgery, a surgery performed incorrectly, not performing a particular test, or failing to diagnose a particular condition. These errors often involve the application of practice standards to a patient’s medical condition, x-rays, images of the patient, and medical histories.
With the highly specialized nature of medicine and concerns over the cost of malpractice insurance, many states impose stringent requirements if you pursue a medical malpractice lawsuit. As a prerequisite to even filing a lawsuit, you must find a doctor familiar with the standards in the community who will say that your doctor’s treatment and services did not meet that standard. Even when an expert is not required before filing suit, you must have an expert opinion of malpractice to even make it to a jury.
Proximate Cause
The negligence of a defendant must have actually caused the injuries of which you claim. In addition to cause in fact, you must establish proximate cause.
Foreseeability stands as the foundation of proximate cause. You must establish that your injuries represent a reasonably foreseeable result of the negligent activity. Courts generally focus upon whether harm to you was a natural or expected result of the negligent act or omission. This can include the aggravation of pre-existing medical conditions.
Negligent security claims arise when a plaintiff suffers injury from a criminal attack on the premises. Your claim turns on the ability to prove that the landowner could have reasonably foreseen that the attack would have occurred. A history of prior attacks or other violent crimes on or very close to the property may suffice. Your evidence may come from police reports or even reports submitted by the property owner to law enforcement or to its insurance company.