NEGLIGENCE

NEGLIGENCE

NEGLIGENCE

NEGLIGENCE

Conduct that falls below the standards of behavior
established by law for the protection of others
against unreasonable risk of harm. A person has
acted negligently if he or she has departed from the
conduct expected of a reasonably prudent person
acting under similar circumstances.
In order to establish negligence as a CAUSE OF
ACTION under the law of TORTS, a plaintiff must
prove that the defendant had a duty to the plain-
tiff, the defendant breached that duty by failing to
conform to the required standard of conduct, the
defendant’s negligent conduct was the cause of the
harm to the plaintiff, and the plaintiff was, in fact,
harmed or damaged.
The concept of negligence developed under
ENGLISH LAW. Although English COMMON LAW
had long imposed liability for the wrongful acts
of others, negligence did not emerge as an inde-
pendent cause of action until the eighteenth cen-
tury.Another important concept emerged at that
time: legal liability for a failure to act. Originally
liability for failing to act was imposed on those
who undertook to perform some service and
breached a promise to exercise care or skill in
performing that service. Gradually the law began
to imply a promise to exercise care or skill in the
performance of certain services. This promise to
exercise care, whether express or implied, formed
the origins of the modern concept of “duty.” For
example, innkeepers were said to have a duty to
protect the safety and security of their guests.
The concept of negligence passed from
Great Britain to the United States as each state
(except Louisiana) adopted the common law of
Great Britain (Louisiana adopted the CIVIL LAW
of France). Although there have been important
developments in negligence law, the basic con-
cepts have remained the same since the eigh-
teenth century. Today negligence is by far the
widest-ranging tort, encompassing virtually all
unintentional, wrongful conduct that injures
others. One of the most important concepts in
negligence law is the “reasonable person,” which
provides the standard by which a person’s con-
duct is judged.
The Reasonable Person
A person has acted negligently if she has
departed from the conduct expected of a rea-
sonably prudent person acting under similar
circumstances. The hypothetical reasonable per-
son provides an objective by which the conduct
of others is judged. In law, the reasonable person
is not an average person or a typical person but
a composite of the community’s judgment as to
how the typical community member should
behave in situations that might pose a threat of
harm to the public. Even though the majority of
people in the community may behave in a cer-
tain way, that does not establish the standard of
conduct of the reasonable person. For example,
a majority of people in a community may jay-
walk, but jaywalking might still fall below the
community’s standards of safe conduct.
The concept of the reasonable person distin-
guishes negligence from intentional torts such as
ASSAULT AND BATTERY. To prove an intentional
tort, the plaintiff seeks to establish that the
defendant deliberately acted to injure the plain-
tiff. In a negligence suit, however, the plaintiff
seeks to establish that the failure of the defen-
dant to act as a reasonable person caused the
plaintiff ’s injury. An intoxicated driver who
accidentally injures a pedestrian may not have
intended to cause the pedestrian’s injury. But
because a reasonable person would not drive
while intoxicated because it creates an unrea-
sonable risk of harm to pedestrians and other
drivers, an intoxicated driver may be held liable
to an injured plaintiff for negligence despite his
lack of intent to injure the plaintiff.
The law considers a variety of factors in
determining whether a person has acted as the
hypothetical reasonable person would have
acted in a similar situation. These factors
include the knowledge, experience, and percep-
tion of the person, the activity the person is
engaging in, the physical characteristics of the
person, and the circumstances surrounding the

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