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Negligence - Negligent



Negligence is a common law concept that involves the failure of a duty to exercise reasonable care or to act in a manner consistent with how other reasonable people should act. Black's Law Dictionary says that negligence is "the failure to exercise the standarf od care that a reasonably prudent person would have exercised in a similar situation." Negligence is also a factor in insurance contracts.

Conditions for Negligence
In order for negligence to be proven in court, four conditions must be met:

  • It must be clear that there was a duty to act
  • It must be proven that there was a failure of the duty to act
  • It must be proven that this failure was the proximate (direct) cause
  • And it must be proven that harm was caused. (No harm, no foul, so to speak.)
Another way to state this concept is to say that an individual failed to exercise his or her duty to protect others from harm.

If any of these four points, in order, cannot be proven, negligence is not present. For example, although harm may have been caused, if there was no duty to act, there is no negligence. Or, if it can be shown that the duty to act had nothing to do with the harm (that it was not the cause of the harm), negligence cannot be charged.

Standard of Care Standard of care definitions relate to the degree of care that a reasonable person would have exercised in the given situation. The concept of standard of care is based on a "reasonable person" standard, which changes based on circumstances. For example, what is reasonable for an average person in a medical emergency situation is not reasonable for a medical doctor, who is held to a higher standard.

Defenses to Negligence

  • One defense to a charge of negligence is contributory negligence; that the other party also had a duty to act. In this case, the negligence of both parties is considered and apportioned between them. If someone is drunk and speeding, damage to someone else's car might be considered at 80%, but if the other party contributed to the damage (by failing to stop at a stop sign), their portion of the cost might be 20%.
  • Another defense is assumption of risk. In this case, if you voluntarily expose yourself to risk, you are at least partly at fault. For example, if you buy a ticket to a ski resort, you assume the risk of being injured, because you are supposed to know that skiing is a dangerous sport. Of course, if the resort owners fail to maintain equipment, you can't assume that risk.

Remedies for Negligence and Other Torts
If a defendant is found to be negligent, there are several ways to compensate the other party:

  • Compensatory damages are payments for actual measurable costs such as hospital costs, doctor's bills, prescriptions, medical devices, and lost wages. Costs for "pain and suffering," while more difficult to quantify, may also be included in compensatory damages.
  • Punitive damages are imposed upon wrongdoers as punishment.

Indemnity Agreements and Negligence
Some businesses include indemnity agreements in contracts in an attempt to forestall negligence claims. An indemnity agreement includes "hold harmless" language, saying that the business can't be held negligent for its actions. But this kind of language doesn't protect against a negligence lawsuit and it's better left out of agreements if that is the only purpose of the language.

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