What is Negligence Law?

M. Lupica

Negligence law is a sphere of tort law that is aimed at granting restitution to victims that have been harmed by someone who acts without the appropriate level of care. In order for a valid negligence claim, four elements must be established: a duty to the victim, a breach of that duty by the negligent party, a harm resulting to the victim, and the breach being the cause of that harm. Additionally, negligence law holds that some actions result in an automatic breach regardless of other facts, called negligence per se. Any party found to have acted negligently may raise one or more defenses to reduce or negate the claim, usually contributory negligence or comparative negligence.

A doctor who fails to disclose all available treatment options to a patient may be sued for medical negligence.
A doctor who fails to disclose all available treatment options to a patient may be sued for medical negligence.

The four main elements of negligence law are duty, breach, harm, and proximate cause. A duty may arise from a particular relationship between the parties, e.g., employer and its employee, houseguest, or a doctor and his or her patient. A breach of this duty generally occurs when the party holding the duty acts in a manner that falls short of the care with which a reasonable person in his or her position would act. Harm to the victim is typically measured in financial terms, and in the case of a personal injury the court has discretion to allocate financial damages to compensate for any pain and suffering in addition to restitution for medical bills. In determining whether the breach was a proximate cause of the harm, the court will typically ask if the harm would have occurred “but for” the breach in question.

A surgeon who is negligent during surgery may face charges.
A surgeon who is negligent during surgery may face charges.

In some cases, the negligence law elements of duty and breach are satisfied automatically by the circumstances regardless of other operative facts, which is called negligence per se. Generally this occurs where there is some law in place that the negligent party breaks resulting in some harm to the victim. The classic example of negligence per se is a car accident in which the negligent party is driving over the stated speed limit. By breaking the speeding law and causing the accident, the driver will be held to have been negligent per se regardless of other facts.

When breaking a law results in a car accident, the driver at fault is guilty of negligence per se.
When breaking a law results in a car accident, the driver at fault is guilty of negligence per se.

Negligence law has two primary defenses that negligent parties may assert to bar or reduce the victim’s claim. Most jurisdictions recognize comparative negligence whereby the negligent party may assert that the victim’s negligence contributed to the accident as well. The finder of fact will consider the circumstances, determine for what percentage the victim was at fault for the harm, and reduce the award of damages proportionally. A minority of jurisdictions recognize the doctrine of contributory negligence where if the victim was at least half at fault for the cause of the harm, he or she is barred completely from collecting from the negligent party.

A negligence claim might deal with a workplace accident.
A negligence claim might deal with a workplace accident.

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