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Negligence

I hear it all the time…” So and so has been negligent, and thus I am entitled to money for compensatory damages and some punitive damages.” At which point I have to stop him or her and say that “negligence” has a special, nuanced meaning in the law.

Very generally speaking, negligence occurs when (1) there is a duty of care owed by an individual, (2) that individual acts in a manner inconsistent with that duty and standard of care, and (3) damages resulting from these actions.

An example will help. Say you are driving a car and are rear-ended by someone behind you as you are stopping at a stop sign. The driver behind you is likely negligent. First, the other driver had a duty to keep reasonable control of his or her vehicle, a duty to keep a careful lookout, and a duty to try to swerve or avoid contact. Second, the driver did not follow these duties, and thus collided with your car. And finally, supposing there was even a small amount of damages to either your car or your person, there has been negligence.

Be conscious, however, that this is a very simple example. Negligence cases often live and die on what standard of care is appropriate. For instance, the standard of care that applies to business owners or common carriers (e.g., buses, public transit) is much higher than the standard of care that applies with children or public entities. It is for this reason that malpractice claims against professionals (like attorneys, accountants, doctors) requires experts to help establish the appropriate standard of care.

And one final word concerning the “damages” element. Let’s say that I’m driving down the road and answer my cell phone. I take my eyes off the road a swerve into the other lane of a two-lane road. I quickly realize this and swerve back into my proper lane before hitting anything. Because no damages resulted from my actions, I was not legally negligent.

In comparison to other areas of the law, negligence is relatively straightforward. Despite this relative simplicity, however, it is not without its wrinkles. Things get complicated when there are multiple defendants negligent in a case or when the plaintiff is also negligent (comparative negligence — a post for another time). And because much of negligence law is case-driven, one generally cannot look at a statute to glean specific answers.

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