Negligence and Tort Law

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By Aaron Larson
Law Offices of Aaron Larson
October, 2003
Proximate Cause
The Elements of a Negligence Action
Gross Negligence
Children and Negligence
Comparative Negligence
Contributory Negligence
Mixed Comparative and Contributory Negligence
Vicarious Liability
In general terms, negligence is "the failure to use ordinary care" through either an act or omission. That is, negligence occurs when:

somebody does not exercise the amount of care that a reasonably careful person would use under the circumstances; or somebody does something that a reasonably careful person would not do under the circumstances. Negligence is often claimed in personal injury lawsuits. For example, a personal injury lawsuit arising out of an automobile accident case or premises liability action is frequently based on the theory that the defendant was negligent. Please note that negligence law varies between jurisdictions, sometimes significantly, and you should check with a local legal professional if you wish to know the specific negligence laws of your jurisdiction.

Proximate Cause
Proximate cause exists where the plaintiff is injured as the result of negligent conduct, and plaintiff's injury must have been a natural and probable result of the negligent conduct. In order for a defendant to be liable, the plaintiff must establish both negligence and proximate cause.

Please note that the law speaks of the defendant's conduct as being "a proximate cause" of an accident, as opposed to "the proximate cause". Many accidents have more than one proximate cause. It is typically not necessary for liability that the defendant's negligence be either the only proximate cause of an injury, or the last proximate cause. A defendant may be liable even where an injury has multiple proximate causes, and whether those causes occur at the same time or in combination. A plaintiff may be able to bring a cause of action against two or more defendants by proving that the acts of each were proximate causes of the plaintiff's injury, even where the defendants' negligent acts were distinct.

Imagine a situation where a plaintiff is driving down the road, and is suddenly cut off by a person who runs through a stop sign on a side street. The plaintiff slams on her brakes, and is able to avoid striking that car. However, the plaintiff is rear-ended by another driver who was not paying attention to the events in front of his car. The plaintiff may be able to bring an action against both drivers - the one who cut her off and the one who rear-ended her - on the basis that their negligent acts, although independent, were both proximate causes of her injuries.

The Elements of a Negligence Action
A typical formula for evaluating negligence requires that a plaintiff prove the following four factors by a "preponderance of the evidence":

The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); The defendant violated that duty;
As a result of the defendant's violation of that duty, the plaintiff suffered injury; and The injury was a reasonably foreseeable consequence of the defendant's action or inaction. For example, a person driving a car has a general duty to conduct the car in a safe and responsible manner. If a driver runs through a red light, the driver violates that duty. As it is foreseeable that running a red light can result in a car crash, and that people are likely to be injured in such a collision, the driver will be liable in negligence for any injuries that in fact result to others in a collision resulting from the running of the red light.

Gross Negligence
Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. It is sometimes necessary to establish "gross negligence" as opposed to "ordinary negligence" in order to overcome a legal impediment to a lawsuit. For example, a...
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