"reasonable person," which provides the
How Do You Prove Negligence in Negligence standard by which a person's conduct is
a Personal Injury Lawsuit? judged.
Conduct that falls below the standards of
Summary of the elements that join together behavior established by law for the The Reasonable Person
to define negligence and build a case for a protection of others against unreasonable
personal injury lawsuit. risk of harm. A person has acted A person has acted negligently if she has
negligently if he or she has departed from
departed from the conduct expected of a
Were you injured? the conduct expected of a reasonably reasonably prudent person acting under
prudent person acting under similar similar circumstances. The hypothetical
To have a personal injury lawsuit, it needs circumstances. reasonable person provides an objective by
to be provable that you are injured and that which the conduct of others is judged. In
you have suffered physically. As well, you In order to establish negligence as a Cause law, the reasonable person is not an
may have suffered psychologically and of Action under the law of torts, a plaintiff average person or a typical person but a
financially, exacerbating the suffering. must prove that composite of the community's judgment as
1) the defendant had a duty to the to how the typical community member
Are you a victim? plaintiff, should behave in situations that might pose
2) the defendant breached that duty by a threat of harm to the public. Even though
An injury may become a personal injury failing to conform to the required the majority of people in the community
legal matter if an other person’s actions standard of conduct, may behave in a certain way, that does not
was involved in the cause of your injury 3) the defendant's negligent conduct was establish the standard of conduct of the
such that, if that other person or entity had the cause of the harm to the plaintiff, reasonable person. For example, a majority
not acted (or failed to act) in the way that and of people in a community may jay-walk,
they did, your injury would not have 4) the plaintiff was, in fact, harmed or but jaywalking might still fall below the
occurred. damaged. community's standards of safe conduct.
Was the perpetrator acting with The concept of negligence developed under The concept of the reasonable person
negligence? English Law. Although English Common distinguishes negligence from intentional
Law had long imposed liability for the torts such as Assault and Battery. To prove
To have a personal injury legal case, your wrongful acts of others, negligence did not an intentional tort, the plaintiff seeks to
attorney must do more than prove that the emerge as an independent cause of action establish that the defendant deliberately
actions or inactions of another led to your until the eighteenth century. Another acted to injure the plaintiff. In a negligence
injury and suffering. Those other important concept emerged at that time: suit, however, the plaintiff seeks to
person’s actions must also be considered legal liability for a failure to act. Originally establish that the failure of the
negligence - failing to take reasonable liability for failing to act was imposed on defendant to act as a reasonable person
care to avoid causing injury or loss to those who undertook to perform some caused the plaintiff's injury. An
another person. If the actions of the service and breached a promise to exercise intoxicated driver who accidentally injures
person or entity causing the injury can be care or skill in performing that service. a pedestrian may not have intended to
deemed negligence, then you likely have Gradually the law began to imply a cause the pedestrian's injury. But because a
sufficient grounds for a personal injury promise to exercise care or skill in the reasonable person would not drive while
case. performance of certain services. This intoxicated because it creates an
promise to exercise care, whether express unreasonable risk of harm to pedestrians
Proving negligence or implied, formed the origins of the and other drivers, an intoxicated driver
modern concept of "duty." For example, may be held liable to an injured plaintiff
To prove negligence, your attorney must innkeepers were said to have a duty to for negligence despite his lack of intent to
show that there was— protect the safety and security of their injure the plaintiff.
guests.
- A duty of care— the defendant had a The law considers a variety of factors in
duty to act in a way that a reasonable The concept of negligence passed from determining whether a person has acted as
person would act. Great Britain to the United States as each the hypothetical reasonable person would
- A breach of that duty—the defendant state (except Louisiana) adopted the have acted in a similar situation. These
acted, or failed to act, in that common law of Great Britain (Louisiana factors include the knowledge, experience,
reasonable manner. adopted the Civil Law of France). and perception of the person, the activity
- A factual legal causal connection—the Although there have been important the person is engaging in, the physical
defendant’s actions or inactions developments in negligence law, the basic characteristics of the person, and the
were the cause of your loss or concepts have remained the same since the circumstances surrounding the person's
damages. eighteenth century. Today negligence is by actions.
- A resulting harm—you, the plaintiff, far the widest-ranging tort, encompassing
were harmed as a result of the virtually all unintentional, wrongful
defendant’s actions or omission. conduct that injures others. One of the most
+++++++++++++++++++++++++++++++ important concepts in negligence law is the
Knowledge, Experience, and authorized to engage in that activity. In from acting according to the reasonable
Perception other words, the hypothetical reasonable person standard. The fact that an individual
person is a skilled, competent, and is lacking in intelligence, judgment,
experienced person who engages in the memory, or emotional stability does not
The law takes into account a person's same activity. Often persons practicing excuse the person's failure to act as a
knowledge, experience, and perceptions in these special skills must be licensed, such reasonably prudent person would have
determining whether the individual has as physicians, lawyers, architects, barbers, acted under the same circumstances. For
acted as a reasonable person would have pilots, and drivers. Anyone who performs example, a person who causes a forest fire
acted in the same circumstances. Conduct these special skills, whether qualified or by failing to extinguish his campfire cannot
must be judged in light of a person's actual not, is held to the standards of conduct of claim that he was not negligent because he
knowledge and observations, because the those properly qualified to do so, because lacked the intelligence, judgment, or
reasonable person always takes this into the public relies on the special expertise of experience to appreciate the risk of an
account. Thus, if a driver sees another car those who engage in such activities. Thus, untended campfire.
approaching at night without lights, the an unlicensed driver who takes his friends
driver must act reasonably to avoid an for a joyride is held to the standard of
accident, even though the driver would not Similarly, evidence of voluntary
conduct of an experienced, licensed driver. intoxication will not excuse conduct that is
have been negligent in failing to see the
other car. otherwise negligent. Although intoxication
The law does not make a special allowance affects a person's judgment, voluntary
for beginners with regard to special skills. intoxication will not excuse negligent
In addition to actual knowledge, the law The learner, beginner, or trainee in a conduct, because it is the person's conduct,
also considers most people to have the special skill is held to the standard of not his or her mental condition, that
same knowledge, experience, and ability to conduct of persons who are reasonably determines negligence. In some cases a
perceive as the hypothetical reasonable skilled and experienced in the activity. person's intoxication is relevant to
person. In the absence of unusual Sometimes the beginner is held to a determining whether his conduct is
circumstances, a person must see what is standard he cannot meet. For example, a negligent, however, because undertaking
clearly visible and hear what is clearly first-time driver clearly does not possess certain activities, such as driving, while
audible. Therefore, a driver of a car hit by a the experience and skill of an experienced intoxicated poses a danger to others.
train at an unobstructed railroad crossing driver. Although it may seem unfair to hold
cannot claim that she was not negligent the beginner to the standards of the more
because she did not see or hear the train, Children Children may be negligent, but
experienced person, this standard protects they are not held to the same standard of
because a reasonable person would have the general public from the risk of a
seen or heard the train. conduct as adults. A child's conduct is
beginner's lack of competence, because the measured against the conduct expected of a
community is usually defenseless to guard child of similar age, intelligence, and
Also, a person cannot deny personal against such risks. experience. Unlike the standard for adults,
knowledge of basic facts commonly known the standard of reasonable conduct for
in the community. The reasonable person Physical Characteristics The law takes a children takes into account subjective
knows that ice is slippery, that live wires person's physical characteristics into factors such as intelligence and experience.
are dangerous, that alcohol impairs driving account in determining whether that In this sense the standard is less strict than
ability, and that children might run into the person's conduct is negligent. Whether a for adults, because children normally do
street when they are playing. To act as a person's conduct is reasonable, and not engage in the high-risk activities of
reasonable person, an individual must even therefore not negligent, is measured against adults and adults dealing with children are
take into account their lack of knowledge a reasonably prudent person with the same expected to anticipate their "childish"
of some situations, such as when walking physical characteristics. There are two behavior.
down a dark, unfamiliar corridor. reasons for taking physical characteristics
into account. A physically impaired In many states children are presumed
Finally, a person who undertakes a individual cannot be expected to conform incapable of negligence below a certain
particular activity is ordinarily to a standard of conduct that would be age, usually seven years. In some states
considered to have the knowledge physically impossible for her to meet. On children between the ages of seven and
common to others who engage in that the other hand, a physically challenged fourteen years are presumed to be
activity. A motorist must know the rules of person must act reasonably in light of her incapable of negligence, although this
the road and a product manufacturer must handicap, and she may be negligent in presumption can be rebutted. Once a
know the characteristics and dangers of its taking a risk that is unreasonable in light of person reaches the age of majority, usually
product, at least to the extent they are her known physical limitations. Thus, it eighteen years, she is held to adult
generally known in the industry. would be negligent for a blind person to standards of conduct.
drive an automobile.
Special Skills If a person engages in an One major exception to the rules of
activity requiring special skills, education, Mental Capacity Although a person's negligence exists with regard to children. If
training, or experience, such as piloting an physical characteristics are taken into a child is engaging in what is considered an
airplane, the standard by which his conduct account in determining negligence, the "adult activity," such as driving an
is measured is the conduct of a reasonably person's mental capacity is generally automobile or flying an airplane, the child
skilled, competent, and experienced person ignored and does not excuse the person will be held to an adult standard of care.
who is a qualified member of the group
The higher standard of care imposed for reasonable person would have acted. The such as scientific theories, data, tests, and
plaintiff can show that the defendant
these types of activities is justified by the experiments. Also, in cases involving
special skills required to engage in them violated a statute designed to protect professionals such as physicians, experts
and the danger they pose to the public. against the type of injury that occurred to establish the standard of care expected of
the plaintiff. Also, a plaintiff might the professional. In the above example, the
Emergencies The law recognizes that even introduce expert witnesses, evidence of a patient might have a physician offer Expert
a reasonable person can make errors in customary practice, or Circumstantial Testimony regarding the medication that a
judgment in emergency situations. Evidence. reasonably prudent physician would have
Therefore, a person's conduct in an prescribed for the patient's illness.
emergency is evaluated in light of whether Statutes Federal and state statutes,
it was a reasonable response under the municipal ordinances, and administrative Custom Evidence of the usual and
circumstances, even though, in hindsight, regulations govern all kinds of conduct and customary conduct or practice of others
another course of action might have frequently impose standards of conduct to under similar circumstances can be
avoided the injury. be observed. For example, the law admitted to establish the proper standard of
prohibits driving through a red traffic light reasonable conduct. Like the evidence
In some circumstances failure to anticipate at an intersection. A plaintiff injured by a provided by expert witnesses, evidence of
an emergency may constitute negligence. defendant who ignored a red light can custom and habit is usually used in cases
The reasonable person anticipates, and introduce the defendant's violation of the where the nature of the alleged negligence
takes precautions against, foreseeable statute as evidence that the defendant acted is beyond the common knowledge of the
emergencies. For example, the owner of a negligently. However, a plaintiff's evidence jurors. Often such evidence is presented in
theater must consider the possibility of a that the defendant violated a statute does cases alleging negligence in some business
fire, and the owner of a swimming pool not always establish that the defendant activity. For example, a plaintiff suing the
must consider the possibility of a swimmer acted unreasonably. The statute that was manufacturer of a punch press that injured
drowning. Failure to guard against such violated must have been intended to protect her might present evidence that all other
emergencies can constitute negligence. against the particular hazard or type of manufacturers of punch presses incorporate
harm that caused injury to the plaintiff. a certain safety device that would have
prevented the injury.
Also, a person can be negligent in causing
an emergency, even if he acts reasonably Sometimes physical circumstances beyond
during the emergency. A theater owner a person's control can excuse the violation A plaintiff's evidence of conformity or
whose negligence causes a fire, for of a statute, such as when the headlights of nonconformity with a customary practice
instance, would be liable for the injuries toa vehicle suddenly fail, or when a driver does not establish whether the defendant
the patrons, even if he saved lives during swerves into oncoming traffic to avoid a was negligent; the jury decides whether a
the fire. child who darted into the street. To excuse reasonably prudent person would have
the violation, the defendant must establish done more or less than is customary.
Conduct of Others Finally, the reasonable that, in failing to comply with the statute,
person takes into account the conduct of she acted as a reasonable person would Circumstantial Evidence Sometimes a
have acted. plaintiff has no direct evidence of how the
others and regulates his own conduct
accordingly. A reasonable person must defendant acted and must attempt to prove
even foresee the unlawful or negligent In many jurisdictions the violation of a his case through circumstantial evidence.
Of course, any fact in a lawsuit may be
conduct of others if the situation warrants. statute, regulation, or ordinance enacted to
Thus, a person may be found negligent for protect against the harm that resulted to the proved by circumstantial evidence. Skid
leaving a car unlocked with the keys in the plaintiff is considered negligence per se. marks can establish the speed a car was
ignition because of the foreseeable risk of Unless the defendant presents evidence traveling prior to a collision, a person's
theft, or for failing to slow down in the excusing the violation of the statute, the appearance can circumstantially prove his
vicinity of a school yard where children defendant's negligence is conclusively or her age, etc. Sometimes a plaintiff in a
might negligently run into the street. established. In some jurisdictions a negligence lawsuit must prove his entire
case by circumstantial evidence. Suppose a
defendant's violation of a statute is merely
evidence that the defendant acted plaintiff's shoulder is severely injured
Proof of Negligence negligently. during an operation to remove his tonsils.
The plaintiff, who was unconscious during
In a negligence suit, the plaintiff has the Experts Often a plaintiff will need an the operation, sues the doctor in charge of
burden of proving that the defendant did expert witness to establish that the the operation for negligence, even though
not act as a reasonable person would have defendant did not adhere to the conduct he has no idea how the injury actually
acted under the circumstances. The court expected of a reasonably prudent person in occurred. The doctor refuses to say how the
will instruct the jury as to the standard of the defendant's circumstances. A juror may injury occurred, so the plaintiff will have to
conduct required of the defendant. For be unable to determine from his own prove his case by circumstantial evidence.
example, a defendant sued for negligent experience, for example, if the medicine
driving is judged according to how a prescribed by a physician was reasonably In cases such as this, the doctrine of Res
reasonable person would have driven in the appropriate for a patient's illness. Experts Ipsa Loquitur (the thing speaks for itself) is
same circumstances. A plaintiff has a may provide the jury with information invoked. Res ipsa loquitor allows a
variety of means of proving that a beyond the common knowledge of jurors, plaintiff to prove negligence on the theory
defendant did not act as the hypothetical
that his injury could not have occurred in others, but usually one does not have a Actually, the term proximate cause is
the absence of the defendant's negligence. duty to render aid or prevent harm to a somewhat misleading because as a legal
The plaintiff must establish that the injury person from an independent cause. A concept it has little to do with proximity (in
was caused by an instrumentality or common example of this limitation on duty time or space) or causation. Rather,
condition that was under the defendant's is the lack of a duty to go to the aid of a proximate cause is related to fairness and
exclusive management or control and that person in peril. An expert swimmer with a justice, in the sense that at some point it
the plaintiff's injury would not have boat and a rope has no duty to attempt to becomes unfair to hold a defendant
occurred if the defendant had acted with rescue a person who is drowning (although responsible for the results of his
reasonable care. Thus, in the above a hired lifeguard would). A physician who negligence. For example, Mrs. O'Leary's
example, the plaintiff can use res ipsa witnesses an automobile accident has no negligent placement of her lantern may
loquitor to prove that the doctor duty to offer emergency medical assistance have started the Great Chicago Fire, but it
negligently injured his shoulder. to the accident victims. would be unjust to hold her responsible for
all the damage done by the fire.
Duty Sometimes a person can voluntarily
assume a duty where it would not In determining whether a defendant's
A defendant is not liable in negligence, otherwise exist. If the doctor who negligence is the proximate cause of a
even if she did not act with reasonable encounters an automobile accident decides plaintiff's injury, most courts focus on the
care, if she did not owe a duty to the to render aid to the victims, she is under a foreseeability of the harm that resulted
plaintiff. In general, a person is under a duty to exercise reasonable care in from the defendant's negligence. For
duty to all persons at all times to exercise rendering that aid. As a result, doctors who example, if a driver negligently drives his
reasonable care for their physical safety have stopped along the highway to render automobile, it is foreseeable that he might
and the safety of their property. This medical assistance to accident victims have cause an accident with another vehicle, hit
general standard of duty may lead to been sued for negligence. Many states have a pedestrian, or crash into a storefront.
seemingly unjust results. For example, if a adopted "good samaritan" statutes to Thus, the driver would be liable for those
property owner leaves a deep hole in her relieve individuals who render emergency damages. But suppose the negligent driver
backyard with no warnings or barriers assistance from negligence liability. collides with a truck carrying dynamite,
around the hole, she should be liable if her causing an explosion that injures a person
guest falls into the hole. But what if a Even if a plaintiff establishes that the two blocks away. Assuming that the driver
trespasser enters the backyard at night and defendant had a duty to protect the plaintiff had no idea that the truck was carrying
falls into the hole? Although the property from harm and breached that duty by dynamite, it is not foreseeable that his
owner was negligent in failing to guard failing to use reasonable care, the plaintiff negligent driving could injure a person two
against someone falling into the hole, it must still prove that the defendant's blocks away. Therefore the driver would
would be unfair to require the property negligence was the proximate cause of not be liable for that person's injury under
owner to compensate the trespasser for his her injury. this approach. When applying this
injury. Therefore, the law states that a approach, courts frequently instruct juries
property owner does not have a duty to to consider whether the harm or injury was
Proximate Cause the "natural or probable" consequence of
protect a trespasser from harm.
the defendant's negligence.
Perhaps no issue in negligence law has
The law uses the concept of duty to limit caused more confusion than the issue of
the situations where a defendant is liable A minority of courts hold the view that the
proximate cause. The concept of proximate defendant's negligence is the proximate
for a plaintiff's injury. Whether a defendant cause limits a defendant's liability for his
has a duty to protect the plaintiff from cause of the plaintiff's injury if the injury is
negligence to consequences reasonably
harm is a question decided by the court, not related to the negligent conduct. Although the "direct result" of the negligence.
the jury. Over time, courts have developed it might seem obvious whether a Usually a plaintiff's injury is considered to
numerous rules creating and limiting a be the direct result of the defendant's
defendant's negligence has caused injury to negligence if it follows an unbroken,
person's duty to others, and sometimes the plaintiff, issues of causation are often
duties are established or limited by statute. very difficult. Suppose, for example, that a natural sequence from the defendant's act
Whether the defendant owes the plaintiff a defendant negligently causes an automobile and no intervening, external force acts to
duty depends upon the relationship cause the injury.
accident, injuring another driver. The
between the defendant and the plaintiff. colliding cars also knock down a utility
pole, resulting in a power outage. Clearly Intervening Cause
A preexisting relationship can create an the defendant's negligence has in fact
affirmative duty to exercise reasonable care caused both the accident and power outage. Sometimes a plaintiff's injury results from
to protect another person from harm. For Most people would agree that the negligent more than one cause. For instance, suppose
example, an inn has an affirmative duty to defendant should be liable for the other a defendant negligently injures a pedestrian
protect its guests, a school has a duty to its driver's injuries, but should he also be in an automobile accident. An emergency
pupils, a store has a duty to its customers, liable to an employee who, due to the room doctor negligently treats the plaintiff,
and a lifeguard has a duty to swimmers. failure of her electric alarm clock, arrives aggravating her injury. The doctor's
late for work and is fired? This question negligence is an "intervening cause" of the
One always has a duty to refrain from raises the issue of proximate cause. plaintiff's injury. A cause of injury is an
taking actions that endanger the safety of Intervening Cause only if it occurs sub-
sequent to the defendant's negligent unforeseeable to the defendant, and thus he Also, the negligence of many defendants
conduct. cannot be held liable for the plaintiff's such as corporations, manufacturers, and
death. The airplane was a superseding landowners creates no corresponding risk
Just because an intervening cause exists, cause of the plaintiff's death. of injury to themselves. In such cases the
however, does not mean that the doctrine of contributory negligence, which
defendant's negligent conduct is not the Even great jurists have had difficulty can completely eliminate the liability for
proximate cause of the plaintiff's injury. articulating exactly what constitutes their negligence, reduces their incentive to
The defendant remains liable if he proximate cause. Although the law act safely. As a result, courts and statutes
should have foreseen the intervening provides tests such as "foreseeability" and have considerably weakened the doctrine
cause and taken it into account in his "natural, direct consequences," ultimately of contributory negligence.
conduct. If a defendant negligently spills a the issue of proximate cause is decided by
large quantity of gasoline and doesn't clean people's sense of right and wrong. In the Comparative Negligence Most states,
it up, he will not be relieved of liability for example where the defendant spills either by court decision or statute, have
a resulting fire merely because another gasoline and does not clean it up, most now adopted some form of comparative
person causes the gasoline to ignite, people would agree that the defendant negligence in place of pure, contributory
because it is foreseeable that the gasoline should be liable if a careless smoker negligence. Under comparative negligence,
might be accidentally ignited. Also, it is accidentally ignites the gasoline, even if or comparative fault as it is sometimes
foreseeable that a sudden gust of wind they could not articulate that the smoker known, a plaintiff's negligence is not a
might cause the fire to spread quickly. was a foreseeable, intervening cause of the complete bar to her recovery. Instead the
fire. plaintiff's damages are reduced by
Even if an intervening cause is foreseeable, whatever percentage her own fault
however, in some situations the defendant Defenses to Negligence Liability contributed to the injury. This requires the
will still be excused from liability. If the jury to determine, by percentage, the fault
intervening cause is the intentional or of the plaintiff and defendant in causing the
Even if a plaintiff has established that the plaintiff's injury. For example, suppose a
criminal conduct of a third person, the defendant owed a duty to the plaintiff,
defendant is not liable for this person's plaintiff is injured in an automobile
breached that duty, and proximately caused accident and sustains $100,000 in damages.
negligent conduct. In the example where the defendant's injury, the defendant can
the defendant spilled gasoline and did not The jury determines that the plaintiff was
still raise defenses that reduce or eliminate 25 percent responsible for the accident and
clean it up, he is not responsible for the his liability. These defenses include
resulting fire if someone intentionally that the defendant was 75 percent
contributory negligence, comparative responsible. The plaintiff will then be
ignites the gas. Also, sometimes a third negligence, and Assumption of Risk.
person will discover the danger that the allowed to recover 75 percent of her
defendant created by his negligence under damages, or $75,000.
circumstances where the third person has Contributory Negligence Frequently,
some duty to act. If the third person fails to more than one person has acted negligently Most states have adopted the "50 percent
act, the defendant is not liable. In the to create an injury. Under the common-law rule" of comparative negligence. Under
gasoline example, suppose the defendant, a rule of contributory negligence, a plaintiff this rule the plaintiff cannot recover any
customer at a gas station, negligently spills whose own negligence was a contributing damages if her negligence was as great as,
a large quantity of gas near the pumps. The cause of her injury was barred from or greater than, the negligence of the
owner of the gas station sees the spilled recovering from a negligent defendant. For defendant. This rule partially retains the
gasoline but does nothing. The owner of example, a driver negligently enters an doctrine of contributory negligence,
the gas station, not the defendant, would be intersection in the path of an oncoming car, reflecting the view that a plaintiff who is
liable if another customer accidentally resulting in a collision. The other driver largely responsible for her own injury is
ignites the gasoline. was driving at an excessive speed and unworthy of compensation. A minority of
might have avoided the collision if she had states have adopted "pure comparative
been driving more slowly. Thus, both fault." Under that rule even a plaintiff who
"superseding cause" drivers' negligence contributed to the is 80 percent at fault in causing her injury
accident. Under the doctrine of may still recover 20 percent of damages,
Sometimes, however, a completely contributory negligence, neither driver reflecting the defendant's percentage of
unforeseeable event or result occurs after would be able to recover from the other, fault.
a defendant's negligence, resulting in harm due to her own negligence in causing the
to the plaintiff. An abnormal, accident.
Assumption of Risk Under the assumption
unpredictable, or highly improbable
of risk defense, a defendant can avoid
event that occurs after the defendant's The doctrine of contributory negligence liability for his negligence by establishing
negligence is known as a "superseding seeks to keep a plaintiff from recovering that the plaintiff voluntarily consented to
cause" and relieves the defendant of from the defendant where the plaintiff is
liability. For example, suppose a defendant encounter a known danger created by the
also at fault. However, this doctrine often defendant's negligence. Assumption of risk
negligently blocks a road causing the leads to unfair results. For example, even if may be express or implied. Under express
plaintiff to make a detour in her a defendant's negligence is the
automobile. While on the detour, an assumption of risk, persons agree in
overwhelming cause of the plaintiff's advance that one person consents to
airplane hits the plaintiff's car, killing the injury, even slight negligence on the part of assume the risk of the other's negligence.
plaintiff. The airplane was completely the plaintiff completely bars his recovery.
For example, a skier who purchases a lift circumstances, or taking action which such civil litigation (along with contract and
ticket at a ski resort usually expressly a reasonable person would not. Negligence business disputes) in the United States.
agrees to assume the risk of any injury that is accidental as distinguished from (See: contributory negligence, comparative
might occur while skiing. Thus, even if the "intentional torts" (assault or trespass, for negligence, damages, negligence per se,
ski resort negligently fails to mark a hazardexample) or from crimes, but a crime can gross negligence, joint tortfeasors,
on a trail resulting in an injury to a skier,also constitute negligence, such as reckless tortfeasor, tort, liability, res ipsa loquitur)
the ski resort may invoke the assumption of driving. Negligence can result in all types
risk defense in the skier's subsequent of accidents causing physical and/or
lawsuit. property damage, but can also include
business errors and miscalculations, such
Assumption of risk may also be implied as a sloppy land survey. In making a claim
from a plaintiff's conduct. For example, the for damages based on an allegation of
defendant gives the plaintiff, a painter, a another's negligence, the injured party
scaffold with a badly frayed rope. The (plaintiff) must prove: a) that the party
plaintiff, fully aware of the rope's alleged to be negligent had a duty to the
condition, proceeds to use the scaffold and injured party---specifically to the one
is injured. The defendant can raise the injured or to the general public, b) that the
implied assumption of risk defense. This defendant's action (or failure to act) was
defense is similar to the contributory negligent---not what a reasonably prudent
negligence defense; in the above example, person would have done, c) that the
the defendant might also argue that the damages were caused ("proximately
plaintiff was contributorily negligent for caused") by the negligence. An added
using the scaffold when he knew the rope factor in the formula for determining
was frayed. negligence is whether the damages were
"reasonably foreseeable" at the time of the
The implied assumption of risk defense has alleged carelessness. If the injury is caused
by something owned or controlled by the
caused a great deal of confusion in the
supposedly negligent party, but how the
courts because of its similarity to
accident actually occurred is not known
contributory negligence, and with the rise
(like a ton of bricks falls from a
of comparative fault, the defense has
diminished in importance and is viable construction job), negligence can be found
today only in a minority of jurisdictions. based on the doctrine of res ipsa loquitor
(Latin for "the thing speaks for itself").
Furthermore, in six states and the District
West's Encyclopedia of American Law, of Columbia, an injured party will be
edition 2. Copyright 2008 The Gale Group, denied any judgment (payment) if found to
Inc. All rights reserved. have been guilty of even slight
"contributory negligence" in the accident.
This archaic and unfair rule has been
replaced by "comparative negligence" in
the other 44 states, in which the negligence
of the claimant is balanced with the
percentage of blame placed on the other
party or parties ("joint tortfeasors") causing
the accident. In automobile accident cases
in sixteen states the head of the household
is held liable for damages caused by any
member of the family using the car under
what is called the "family purpose"
doctrine. Six states (California, New York,
Michigan, Florida, Idaho, Iowa, Minnesota,
Nevada, Rhode Island) make the owner of
the vehicle responsible for all damages
whether or not the negligent driver has
assets or insurance to pay a judgment.
Eight states (Connecticut, Massachusetts,
New Jersey, Oregon, Rhode Island,
Tennessee, Virginia, West Virginia)
impose similar liability on the owner, but
negligence n. failure to exercise the care allow the owner to rebut a presumption that
toward others which a reasonable or the driver was authorized to use the car.
prudent person would do in the Negligence is one of the greatest sources of