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BASIC PRINCIPLES OF NEGLIGENCE
Negligence is a tort which is a civil wrong against an individual. Other than negligence, the other category of torts is intentional torts which involve the deliberate intent of the offender. One can be liable for negligence by committing an act or by a failure to do an act.
The person who brings a lawsuit is the plaintiff who sues the defendant. The plaintiff has the burden of proof of five elements in order to make out a prima facie case of negligence:
1 That the defendant committed an act or omission.
2 That there is a duty owed to the plaintiff to act with reasonable care.
3 That the defendant breached that duty.
4 That there is a causal relationship between the defendant’s act or failure to act and the plaintiff’s damages. The defendant’s act or omission must be shown to be the ACTUAL CAUSE as well as the PROXIMATE CAUSE of the damages suffered by the plaintiff.
5 Damages.
These elements can be proved by direct evidence or circumstantial evidence.
If a defendant is proved to have been negligent, the plaintiff can recover the amount of damages caused thereby. However, in some cases, the plaintiff may also have been negligent. In those cases, the plaintiff’s right to damages will be affected by his own negligence. The defendant asserts in response to the plaintiff's complaint the affirmative defense of plaintiff's negligence. The defendant has he burden of proof on the afformative defense to prove that the plaintiff's negligence and that it too was an actual cause and proximate cause of the incident. Different states have different approaches:
1. Contributory negligence states. In states that employ this rule, if the plaintiff is negligent at all, even 1%, he cannot recovery any damages and his lawsuit will be dismissed.
2. Pure comparative negligence states. Here, the judge or jury makes apportions liability between the plaintiff and the defendant. For instance, if the damages sustained by the plaintiff are found to be $10,000.00; and it is found that the defendant was 80% negligent and the plaintiff 20%; then the plaintiff recovers $8,000.00 since the award is reduced by the extent to which the plaintiff caused his own injury.
3. Partial comparative negligent states. The most common approach here is “the 50 % limit” rule. Here, the plaintiff must show that the defendant was at least 50% negligent. Therefore, for instance, if the plaintiff is found to be 55% negligent, he recovers nothing.
Two concepts enter into the analysis whether a state employs contributory negligence, or either of the comparative negligence approaches. The first is the standard to which the defendant is held in determining whether or not he is negligent. The defendant’s conduct must have conformed to the “reasonable person standard”. This is an objective as opposed to a subjective test. If the defendant is shown not to have acted as a reasonably prudent person would under the same or similar circumstances, he will be found to have been negligent, eg. a defendant is the driver of a vehicle who fails to stop at a red light and strikes a pedestrian. The defendant did not at as a "reasonably prudent person" would have.
The second principle is foreseeability. The defendant’s conduct must constitute a reasonable probability (as opposed to the mere POSSIBILITY) of injury. For instance, defendant leaves a golf club in his backyard. His minor son swings the club and accidentally strikes his friend. The friend sues the father claiming that he should have known that children would play in the yard and cause injury with the club. The result was not reasonably foreseeable, and therefore, the defendant would no be liable for his son’s friend’s injury.
Regardless of who has the burden of proof on an issue, the burden can be met by producing direct evidence or circumstantial evidence.
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