failure to exercise the care toward others which a reasonable or prudent person
would do in the circumstances, or taking action which such a reasonable person would
not. Negligence is accidental as distinguished from "intentional torts" (assault
or trespass, for example) or from crimes, but a crime can also constitute negligence,
such as reckless driving. Negligence can result in all types of accidents causing
physical and/or property damage, but can also include business errors and miscalculations,
such as a sloppy land survey. In making a claim for damages based on an allegation
of another's negligence, the injured party (plaintiff) must prove a) that the party
alleged to be negligent had a duty to the injured party-specifically to the one
injured or to the general public, b) that the defendant's action (or failure to
act) was negligent-not what a reasonably prudent person would have done, c) that
the damages were caused ("proximately caused") by the negligence. An added factor
in the formula for determining negligence is whether the damages were "reasonably
foreseeable" at the time of the alleged carelessness. If the injury is caused by
something owned or controlled by the supposedly negligent party, but how the accident
actually occurred is not known (like a ton of bricks falls from a construction job),
negligence can be found based on the doctrine of res ipsa loquitor (Latin for "the
thing speaks for itself"). Furthermore, in six states (Alabama, North Carolina,
South Carolina, Tennessee, Virginia, Maryland) and the District of Columbia, an
injured party will be denied any judgment (payment) if found to 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rule has been replaced by "comparative negligence" in the other 44 states, in which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 16 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. Nine states (California, New York, Michigan, Florida, Idaho,
Iowa, Minnesota, Nevada, Rhode Island) make the owner of the vehicle responsible
for all damages caused by a driver given permission to use the car, 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)
allow the owner to rebut a presumption that the driver was authorized to use the
car. Negligence is one of the greatest sources of litigation (along with contract
and business disputes) in the United States.
See also comparative negligence contributory negligence damages family purpose
doctrine foreseeable risk gross negligence joint tortfeasors liability negligence
per se res ipsa loquitur tort
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