| NEGLIGENCE: Negligence is conduct that falls below the standard established by law for protecting others against unreasonable risks of harm. Negligence is a very broad term that deals with many types of wrongful conduct. Elements of Negligence: For a plaintiff to win a negligence action, each of the following elements must be proven by a preponderance of the evidence: 1. Duty � the defendant owed a duty of care to the plaintiff 2. Breach of Duty � that duty was violated, by the defendant�s conduct 3. Causation � the defendant�s conduct caused the plaintiff�s harm 4. Damages � the plaintiff suffered actual damages Duty and Breach: Everyone has a general duty to exercise reasonable care toward other persons and their property. If you act unreasonably, then you have breached this duty. To help judge whether certain conduct is negligent the law has developed an imaginary creature � �the reasonable person of ordinary prudence and carefulness.� The reasonable person does not represent the typical, average individual. Rather, this person acts the way a community expects its members to act, not exactly as they do in fact act. How does the reasonable person behave? The reasonable person considers how likely a certain harm is to occur, how serious the harm would be if it did occur, and the burden involved in avoiding the harm. The likelihood and seriousness of the harm are balanced against the burden of avoiding the harm. The law assumes that reasonable people do not break the law! Therefore, if somebody violates a law they are automatically considered to have breached the duty to act reasonably. Causation: Once a plaintiff proves that the defendant owes him or her a duty and that this duty was violated, there must be proof that the defendant�s acts caused the harm to the plaintiff. When considering causation, two separate issues must be considered: cause in fact and proximate cause. If the harm would not have occurred without the wrongful act, the act is the cause in fact. The more difficult part of causation is establishing proximate cause. The basic idea behind proximate cause is that there must be a close connection between the wrongful act and the harm caused. In other words, the harm caused must have been a foreseeable result of the act. Damages: A plaintiff who proves duty, breach, and both forms of causation still must prove actual damages to win a negligence action. The idea behind damages is that the plaintiff should be restored to his or her preinjury condition, to the extent that this can be achieved with money. Courts allow plaintiffs to recover for hospital bills, lost wages, damage to property, reduced future earnings, and other economic harm. In addition, plaintiffs can be awarded money for pain and suffering and mental distress. Defenses: Contributory negligence � this means that as a plaintiff, you cannot recover from the defendant if your own negligence contributed in any way to the harm suffered. Comparative negligence � this means dividing the loss according to the degree to which each person is at fault. Assumption of the risk � used when a person voluntarily encounters a known danger and decides to accept the risk of that danger. |