WHAT IS NEGLIGENCE? The question: what is negligence, comes up all the time on our work. In the legal field, negligence is when one person fails to act to the standard of behavior expected of a reasonably prudent person in the same circumstances. Negligence usually results in harm to either the individual themselves or someone else and these harms are what lead to personal injury claims. Unlike other areas of law, torts of negligence are governed by subjective standards of behavior rather than statutory requirements for conduct, such as in criminal law. The proof of negligence first begins with stating that the defendant’s behavior was qualitatively below that of any other reasonable person in similar circumstances. With “reasonableness” being the standard for conduct, discussions over whether a defendant is actually guilty are understandably complicated. A Reasonable Person The first important point about the hypothetical reasonably person in negligence claims is that the standard for reasonableness will vary depending on the circumstances of the incident. When determining what a reasonable person looks like for the situation under question, the law takes into account several factors concerning the individual under question. Questions of knowledge, skill and capacity are all asked when determining how the individual would be expected to act in that situation and whether they failed to meet that expectation. A person is judged by their knowledge of how to reasonable act or react in a particular situation through observation and experience. Knowledge involves accounting for obvious facts of life such as the danger of using fire hear gasoline or the danger of night driving without headlights. A person cannot claim that they did not know basic truths that are commonly known by the community. They have a duty to know and a duty to act on that knowledge. Failure to act based on that knowledge is considered negligent. Physical characteristics are also examined when considering the hypothetical reasonable person. This means that the defendant’s physical attributes, such as their ability to see, hear and act, can contribute to the behavior that is expected of them. Additionally, physical characteristics can also dictate how a person is expected not to act. For instance, it is obvious that a person determined as legally blind should not operate a semi-truck at night. Disregard for physical impairments can be cause for negligence because the person knows of their own physical state and should act within their own physical limits so as to protect themselves and others from harm. Any person determined to have a special set of skills because of education or occupation may be subject to higher standards of conduct. Such persons, because of their increased influence over the community, are expected to exercise more care for others because they have the ability to cause greater harm if they act negligently. Doctors, manufacturers and employers are examples of persons with positions of power and influence over the well-being of others to a greater degree than the lay man. This means that the hypothetical reasonable person in a question of negligence concerning a surgeon would have acted to a greater degree of care because of their occupation and skill. There are several factors that may excuse a certain individual from the expected behavior of a reasonable person. The mental capacity of a person can decrease the expectations for their behavior, such as in the case of a mentally disabled person who causes a public disturbance in a local movie theatre. Mental capacity, along with physical capabilities, also allow for more lenient standards of conduct for young children. While children can act negligently, the expectation for their conduct is measured by that of a child their same age with the same experience and in the same circumstances. Lastly, emergency situations will undoubtedly change how a reasonable person is expected to act. Because of the unexpected and uncontrolled nature of emergencies, there is a general understanding that the margin of error is and should be larger for people caught in emergency situations. This means that there is more empathy for those who make errors in judgment because they were in an emergency situation. The court must then determine whether the person’s response to the situation was the same as how a reasonable person would have reacted. Emergency situations, while they cannot be controlled, can sometimes be foreseen. The foreseeability of an emergency can be cause of negligence if the court determines that the person had ability and duty to anticipate and therefore prepare for the situation. Defenses against Negligence On the flip side of proving negligence, there are several key elements to a situation that may offer defense against being held liable for damages. First, it is often true that there is more than just one negligent person involved in an accident. This is referred to as contributory negligence and as the name suggest, it allows for an injured person who’s own negligence contributed to their harm to be held liable for their own injury. The principle of contributory negligence restricts the plaintiff who contributed to their own injury from seeking any damages from another participant in the accident. Another defense against negligence liability is that of comparative negligence. Unlike contributory negligence, comparative negligence determines liability based on the degree of fault each person has in causing the accident. This principle has been adopted by most states, as opposed to contributory negligence, because it allows for a fair decision in liability claims. Under comparative negligence, if an injured person accumulated medical expenses amounting to $10,000 and the court found that they were 75% responsible for causing their own harm because of negligence and the defendant was 25% responsible, both individuals will be compelled to pay the same percentage of the medical bill. The defendant will be required to pay $2,500 and the injured party will pay the remaining $7,500. Lastly, defendants can use the assumption of risk to avoid liability for his or her negligence. The assumption of risk defense establishes that the plaintiff in the case consented to an activity or procedure voluntarily with knowledge of the possible risks involve. While this does not mean that the defendant was not negligent, it means that the plaintiff essentially “signed off” on the assumed risk of the defendant’s negligence. If shown true through evidence or compelling argument, this defense would legally release the defendant from negligence liability and responsibility for the damages.