Negligence

INTRODUCTION

One definition of tort is that of a wrong committed by one person against another for which the law provides a civil remedy in the form of damages. Some easily visualized examples of torts are assault and battery, trespass, conversion, defamation, and malicious destruction of property. These are all considered intentional torts.

The most common form of a tort is the one committed unintentionally. It is a wrong that is committed because of negligence, not intent.

Several statutes define negligence through wrongful death statutes, the Jones Act, dramshop liability statutes, and more, but most of the law of negligence is defined more based on common law rather than statutory. The definition is based on the reported opinions of courts that have decided similar points in the past rather than definitions rendered through legislative enactment.

It is a firmly established rule of common law that every person’s conduct is to be such as to avoid injury to the person or the property of another.

Negligence definitions may vary by case law but are generally defined by such terms as the "failure to exercise care," or "failure to do what a reasonable person would have done under the circumstances" or "doing something which a reasonable person would not have done under the circumstances." Of course, these definitions require even further definition in order to determine the type of care that should have been exercised and what exactly would a reasonable person do in the particular circumstances.

In a tort liability situation, even though a person has committed negligence or acted negligently so as to cause an injury to the person or property of another, that person will not be held liable for the damages of the latter unless that negligence was the proximate cause of the damages.

This means that it is not sufficient merely to show that an injury was caused by the actions of a second party. The mere fact that there was an accident does not in itself establish a presumption of negligence. In almost every instance, the person claiming damages must prove the negligence of the other, and that the proven negligence was the direct or proximate cause of the injury or the damages. (Exceptions to this rule are discussed later under Res Ipsa Loquitor and Strict Liability.)

This means that the question of whether or not there was negligence is often the question of fact that must be resolved by a court.