The very, very short answer to the question, “What is negligence?” boils down to a single word: carelessness. Of course, it’s never that simple when it comes to legal terms. There are many nuances to consider.
The Hypothetical ‘Reasonable Person’
The law has invented a hypothetical ‘reasonable person’ for the purposes of evaluating whether someone is negligent. This reasonable person, as you might suspect, always acts reasonably.
They never drive drunk, for example, and they always inspect their business property for hidden dangers before allowing customers to enter. This hypothetical reasonable person defines negligence because if the defendant acted in a way that the ‘reasonable person’ wouldn’t, then they were probably negligent.
‘Ordinary negligence’ is the most common form of negligence. To prove that the defendant committed an act of ordinary negligence, you must prove (i) the defendant owed you a duty of care and (ii) the defendant failed to meet the demands of their duty of care.
Proving negligence is not enough to establish liability; you must also prove that the defendant’s negligence caused the harm that you have sustained.
Duty of Care
There is more than one duty of care, however, and some versions are more stringent than others.
The ordinary duty of care
Every competent adult owes everyone else a duty to act reasonably to avoid injuring them. Essentially, the ordinary duty of care is the duty to use common sense to avoid injuring others.
Elevated duties of care
Yes, an elevated duty of care can apply to proving ordinary negligence. The following defendants must meet the standards of an elevated duty of care, which varies according to the circumstances:
- Common carriers (airlines, trains, passenger bus companies like Greyhound, and others);
- Business owners and public properties;
- Parties involved in special relationships (teacher/student, for example);
- Professionals (doctors, for example);
- Employers and employees;
- Child care providers;
- Manufacturers and distributors;
- Fiduciaries (people with power of attorney, for example); and
- Public servants and law enforcement.
Other types of defendants also owe others an elevated duty of care.
‘Damages’ means harm. In almost all cases, you must prove a physical injury to collect any compensation at all. Once you prove a physical injury you can collect compensation for non-economic damages, such as pain and suffering and emotional distress. You can also recover compensation for your economic damages, like your medical bills.
Under unusual circumstances, you can also collect punitive damages, which are designed to punish the defendant rather than to compensate you.
You must prove two kinds of causation to win a negligence claim: factual cause and proximate cause.
Factual cause is “but for” causation. It means that, but for the defendant’s negligence, you would not have suffered your damages. It is a factual question.
You must prove proximate cause even after you have proven factual cause. Proximate cause asks the question, “Was the relationship between the defendant’s negligence and your damages direct enough to justify holding the defendant liable? More specifically, could the ‘reasonable person’ have foreseen the fact that your injuries would arise from the defendant’s negligence? Perhaps not if, for example, you were injured in a ‘freak accident.’
Negligence Per Se
Negligence per se is a shortcut to proving negligence. Under negligence per se law, the requirements of a safety statute or regulation serves as the definition of the defendant’s duty of care. Breaking the statute or regulation, then, constitutes automatic negligence as long as your harm was the very harm that the statute or regulation was designed to prevent.
Suppose, for example, that the defendant ignored a ‘yield’ sign. Rather than let a jury argue about whether ignoring a yield sign constitutes negligence, under negligence per se, the defendant was automatically negligent for failing to yield, as long as you suffered your injury in a car accident.
To qualify for damages, however, you must still prove that the defendant’s negligence is what caused your damages.
Under Oklahoma law, ‘gross negligence’ is the lack of even slight care. The presence of gross negligence can increase the chances that a court will assess punitive damages against a defendant.
Criminal negligence is a different kind of negligence altogether. Its main significance is that a finding of criminal negligence allows a prosecutor to successfully prosecute a defendant for a criminal offense.
A finding of criminal negligence can, for example, justify a criminal conviction for involuntary manslaughter arising from a truck accident. It does not apply to personal injury law.
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Since a successful personal injury claim generates money, all you really need to secure legal representation is a strong claim. In other words, a claim that is likely to win.
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