NEGLIGENCE is a term that means
For
carelessness or a breach of an obligation.
Negligence is used in general language to mean
someone was unreasonably lax in fulfilling some
obligation. If someone is negligent in the eyes of
the law, he or she could face a civil lawsuit or even
criminal charges.
CRIMINAL NEGLIGENCE
When a person breaches a legal obligation, or
falls short of fulfilling an obligation, it is considered
negligence. In some cases, a person is considered
criminally negligent. For example:
 A parent who leaves a two-year-old child
alone in the house in order to go out to a
bar and have a good time could face
charges for criminal negligence.
 A person who drives 40 miles over the
speed limit in a really dangerous way and
who causes a car accident and injures
someone could be charged with criminal
negligence.
 A person who breaks texting-and-driving
laws and who is typing a text message when
he or she gets into a car accident and kills
someone could be considered criminally
negligent.
 A nurse in a nursing home who forgets to
feed a patient who needs help to eat,
causing the patient to starve to death, could
be considered criminally negligent.
 A caregiver in a hospital who isn't paying
attention and who gives someone a deadly
dose of a medication could be considered
criminally negligent.
 A doctor who prescribes addictive drugs to
a known drug addict because the doctor
gets paid for his or her services could be
considered criminally negligent.
Each state has its own criminal laws that define
criminal negligence. Someone charged with
criminal negligence could go to jail.
CIVIL NEGLIGENCE
When a person is negligent or careless in a way
that causes harm to someone else, the victim of
the negligence can sue. This is called civil liability
or civil negligence. There are lots of examples of
negligence that can lead to a civil lawsuit.
example:
 Property owners who let steps to their
house crumble and leave a railing
unrepaired could be considered negligent if
they invites friends over to their house and
their friends trip on the railing and steps
and hurt themselves.
 A restaurant owner who mops the slippery
floor and doesn't put up a "Wet Floor" sign
could be considered negligent.
 A store that knows things get really out-of-
control on Black Friday and who hosts a big
sales event, encouraging a mob scene with
no security, could be considered negligent.
 A doctor who operates on the wrong
patient or on the wrong body part because
he or she misreads the chart could be
considered negligent.
 A company that releases a dangerous drug
without fully testing the medication and
identifying all of the side effects can be
considered negligent.
 A driver who runs a stop sign and who
drives well over the legal speed limit can be
considered negligent.
 A person who owns a dog that he knows is
dangerous and who takes the dog to the
park where the dog bites a small child could
be considered negligent.
 An employer who fails to follow OSHA
guidelines and other workplace safety rules
can be considered negligent (although not
necessarily subject to a lawsuit because of
workers' compensation rules).
 A lawyer who doesn't really know how to
prosecute a case but who takes the case
anyway and doesn't adequately represent
the client can be considered to be liable for
professional negligence.
In each of these situations, a plaintiff could file
a lawsuit and obtain compensation if he or she can
prove the negligence was the direct cause of some
type of harm they endured.
In the law, the term “negligence” refers to a
failure of a person or entity to exercise a level of
care necessary to protect others, whether in
interest, or from physical harm, from actions or
conditions that may cause them harm. Negligence
most often comes into play concerning a person’s
or entity’s actions, however it may also be an
omission or failure to act when there is a duty. To
explore this concept, consider the following
negligence definition.
DEFINITION OF NEGLIGENCE
1. Conduct that falls beneath the standard of
behavior either generally expected in
society, or established by law.
2. The failure to exercise a degree of care or
caution necessary to protect others from
harm.
Origin 1300-1350 Middle English necligence
ELEMENTS OF NEGLIGENCE
There are a number of factors to consider in
determining whether an individual or entity has
acted negligently. The first element of negligence
is whether the party’s acts or omissions lack the
degree of care that would be taken by any
reasonable person in the same situation. The
second element of negligence is whether there was
a predictable likelihood that the party’s conduct
could result in harm. Following these
considerations, there are additional elements of
negligence required to prove a claim of negligence.
If a plaintiff fails to prove any one of these
elements, he loses the entire claim:
DUTY
Generally speaking, all people have a duty
to all others at all times to exercise reasonable
care for their physical safety, as well as the safety
of their property. This does have limitations,
however. A common analogy is the homeowner
who digs a deep hole in his fenced back yard and,
because he knows the hole is there, does not put
up a barrier or warning about the hole. If a guest
then fell into the hole, the homeowner would be
liable, as he has a duty to keep his guest safe from
injury on his property. If a burglar jumped the
fence at night and fell into the hole, the
homeowner would not be held liable for his
injuries, as he has no duty to protect this criminal
from harm in the commission of his crime.
AFFIRMATIVE DUTY
Certain relationships create a duty where
none would otherwise exist. Such duties often
occur in professional or commercial settings. For
example, a school has a duty to protect its
students, a commercial establishment has a duty to
protect its customers, and a restaurant has a duty
to provide safe food to its customers. Certain
professionals have a built-in duty to protect others,
even to the point of rendering aid to others to keep
them safe. Such professionals include police
officers, EMTs and paramedics, firefighters,
doctors, and the like.
RENDERING AID
While all people have a duty to avoid taking
actions that may endanger others, they do not
generally have a duty to provide assistance to
protect others from being harmed by an unrelated
cause. For example, a woman who sees a person
drowning at the public pool has no duty to jump in
and save that person, though the lifeguard on duty
does. Another example would be an off duty
paramedic who witnesses an automobile accident.
While other bystanders have no duty to render
medical aid, the paramedic does, even when he is
off the clock.
BREACH OF DUTY
After establishing that the defendant had a
duty to protect the plaintiff, it must be shown that
he breached that duty. This can happen in two
ways:
1. By knowingly exposing the plaintiff to the
risk of harm or injury, and
2. By failing to recognize a significant risk of
harm or injury which any other reasonable
person would have recognized.
CAUSATION
In order for a person to be held liable for
negligence, it must be shown that his act or failure
to act caused the plaintiff’s loss or injury. This is
often the most complex element of negligence to
prove. For example, Bob negligently causes an
automobile accident in which another driver was
forced into a utility pole and severely injured. Bob
would be held liable for the other driver’s injury
and damage to his car, as his actions were
the direct cause of the injuries and damage.
The damage to the utility pole also caused a
power outage which caused Mary’s alarm clock to
fail. Should Bob be held liable if Mary, who was late
to work, gets fired from her job? This is referred to
as proximate cause, which is a thorny issue, as the
courts must consider what is fair, and at what
point does it become unfair or unreasonable to
hold a person liable for the results of his actions.
DAMAGES
Once breach of duty and causation have
been established, it becomes necessary to
determine a monetary value for the injury or
damages. In some cases, such as contract cases,
this is as simple as awarding the plaintiff the value
he has invested in the contract. The award in any
civil lawsuit is intended to make the plaintiff
whole, or to put him back in the position he was in
before the negligent act, therefore proof of the
amount of the plaintiff’s damages must be
provided in the form of receipts, cancelled checks,
or other evidence. In certain cases, however, it is
appropriate for the court to award a monetary
amount to cover such things as medical costs,
property damages, and pain and suffering.
GROSS NEGLIGENCE
When negligent conduct is seen as extreme
when compared to regular negligence, it is
considered to be “gross negligence” in the eyes of
the law. Gross negligence is the conscious,
voluntary, reckless disregard for the safety or lives
of other people. Grossly negligent conduct is so
extreme that it appears to be an intentional
violation of, or indifference to, the right of others
to be safe.
While claims of regular negligence can
sometimes be difficult to prove, gross negligence
rises to the level of being clearly unreasonable or
dangerous. Examples of grossly negligent acts may
include:
 A driver speeding through a busy parking lot
where pedestrians are walking hits a
shopping cart, forcing it into a man,
resulting in serious injuries
 A provider of home care fails to show up as
scheduled, and giving food and water to his
elderly patient only once in three days
 A nurse gives an injection without first
checking the patient’s wrist band, giving it
to the wrong patient, resulting in a severe
allergic reaction
 A surgeon amputates the wrong leg of a
patient
 A surgeon leaves an instrument in a patient
CRIMINAL NEGLIGENCE
While the standard of civil negligence,
whether regular or gross, is the defendant’s failure
to act in the way another reasonable person would
act in the same situation, the standard of criminal
negligence rises to include the defendant’s mental
state at the time of the act or omission. To prove
criminal negligence, it must be shown that the
defendant failed to perceive or recognize a
substantial risk of injury or damages in actions
that are contrary to the regard for human life, or
that show an obvious indifference to the
consequences of his actions. Criminal charges for
negligence are most often the result of acts that
result in the death of another party.
For example, Sally and John leave their
children, ages 7 and 9, at home while they go wood
cutting. The children find John’s revolver in his
nightstand drawer and decide to play with it. Their
young son ends up shooting his older sister, killing
her. John may face charges of criminal negligence
as, while the act of leaving the children home alone
did not create a high risk of death, the act of
leaving an unsecured, loaded firearm within reach
did.
MEDICAL NEGLIGENCE
When a medical professional fails to
provide care to the standard expected by other
medical professionals in the same situation, it is
considered to be medical negligence. Such
negligence is the primary basis for allegations of
medical malpractice. Medical negligence requires
proof of the same elements as regular negligence:
duty, breach of duty, causation, and damages. The
difference is that physicians and other medical
professionals have a higher duty of care to their
patients.
Causation, or proof of injury, may include
physical effects of the treatment rendered by the
physician, or the failure to provide treatment that
another prudent physician would have deemed
necessary in the same circumstances. Injuries due
to medical negligence may also include emotional
or psychological injury. Causation is a hotly
disputed issue in any medical negligence or
malpractice lawsuit, as medical professionals often
allege that the patient’s injuries were the result of
other factors not related to the care provided by
the professional.
PROFESSIONAL NEGLIGENCE
Professional negligence may occur in a
situation in which an individual has represented
himself as having greater skills and abilities than
the average person. For example, a person
claiming to be a plumbing contractor would be
assumed to have greater skills in plumbing than a
neighbor who has a bit of experience tinkering with
his own plumbing.
Professionals, such as contractors,
accountants, architects, and attorneys, have a duty
to provide services to their clients to the level of
other competent professionals in the same field.
Losses, damages, or injuries sustained by a client
due to a professional’s failure to provide that level
of skill and education may be considered
professional negligence.
For example, Mary hires an attorney to file
a personal injury lawsuit after she was involved in
a car accident. The attorney failed to file the
lawsuit within the statute of limitations, and Mary
was left with no rights to recover damages for her
injuries. Mary then hired another attorney to assist
her with a claim of professional negligence against
the first attorney, who had acted negligently in
handling Mary’s claim.
SUING FOR NEGLIGENCE
Any person or entity can sue another for
negligent conduct. Most employ an attorney with
experience in the specific area of law that pertains
to the act, such as personal injury, employment
law, medical malpractice, and others. A lawsuit for
negligence begins with the filing of a Complaint
and Summons with the court. The Complaint must
explain in detail the relationship between the
parties, the act or failure to act of the party being
sued (the “defendant”), the injuries or damages
sustained as a direct result of the defendant’s
actions, and the specific award sought.
A copy of the Complaint and Summons
must be personally served on the defendant by an
individual not involved in the suit, such as a
professional process server, the constable or
sheriff, or even a friend. The defendant then has
the opportunity to file an Answer addressing the
issues in the Complaint. The civil lawsuit moves
forward from that point with discovery, hearings,
settlement conferences, and perhaps a trial. Civil
lawsuits may take anywhere from weeks to years
to come to a conclusion, depending on the issues
involved.
RELATED LEGAL TERMS AND ISSUES
Civil Lawsuit – A lawsuit brought about in court
when one person claims to have suffered a loss due
to the actions of another person.
Discovery – The pre-trial efforts of each party to
obtain information and evidence.
Liable – Responsible by law; to be held legally
answerable for an act or omission.
Omission – The act of excluding or leaving
something out; a failure to do something,
especially something for which there is a moral or
legal obligation to do.
NEGLIGENCE
In most claims that arise from accidents or
injuries -- from car accidents to "slip and fall" cases
-- the basis for holding a person or company legally
responsible for any resulting harm comes from a
theory called "negligence."
Generally speaking, when someone acts in a
careless way and causes an injury to another
person, under the legal principle of "negligence"
the careless person will be legally liable for any
resulting harm. This basis for assessing and
determining fault is utilized in most disputes
involving an accident or injury, during informal
settlement talks and up through a trial in a
personal injury lawsuit.
ELEMENTS OF A NEGLIGENCE CLAIM
In order to win a negligence case, the plaintiff
(the person injured) must prove the following four
elements to show that the defendant (the person
allegedly at fault) acted negligently:
 1. Duty - The defendant owed a legal duty to unrelated fender bender that happened just across
the plaintiff under the circumstances; the street -- just because the driver was negligent.
2. Breach - The defendant breached that legal
Another aspect of this element looks at
duty by acting or failing to act in a certain
whether the defendant could reasonably have
way;
foreseen that his or her actions might cause an
3. Causation - It was the defendant's actions
injury. If the defendant's actions somehow caused
(or inaction) that actually caused the
the plaintiff injury through a random, unexpected
plaintiff's injury; and
act of nature, the injury would most likely be
4. Damages - The plaintiff was harmed or
deemed unforeseeable -- and the defendant will
injured as a result of the defendant's
not likely be found liable.
actions.
ELEMENT #4: DAMAGES
ELEMENT #1: DUTY
The final element of a negligence case is
When assessing a negligence claim, the first
damages. This element requires that the court be
step is to look to see whether or not the defendant
able to compensate the plaintiff for his or her
owed the plaintiff a legal duty of care. In some
injury -- usually through monetary compensation
circumstances, the relationship between the
for expenses such as medical care or property
plaintiff and defendant might create a legal duty --
repair.
for instance, a doctor owes a patient a legal duty to
provide him or her with competent medical care.
Or, the defendant may owe the plaintiff a legal
duty to act with reasonable care in a certain
situation -- as is the case when one is expected to
operate a motor vehicle safely and with a certain
level of due care.

ELEMENT #2: BREACH OF DUTY

Next, the court will look to see whether the

defendant breached this duty by doing (or not
doing something) that a "reasonably prudent
person" would do under similar circumstances.
The term "reasonably prudent person" refers to a
legal standard that represents how the average
person would responsibly act in a certain situation.
Stated simply, the defendant likely will be found
negligent if the average person, knowing what the
defendant knew at the time, would have known
that someone might have been injured as a result
of his or her actions -- and would have acted
differently than the defendant did in that situation.

ELEMENT #3: CAUSATION

The third element requires that the plaintiff

show that the defendant's negligence actually
caused his or her injury. Sure, someone might be
acting negligently, but the plaintiff can only recover
if this negligence somehow causes the injury. For
example, it wouldn't be fair to sue someone who
was negligently texting and driving for a totally