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In a law context, negligence is behavior that falls below the standards set by law for protecting others from unreasonable risk of harm. In a lawsuit, the plaintiff must prove negligence by establishing that:

  • The defendant owed a duty to the plaintiff;
  • The defendant violated that duty by not meeting the expected standards of conduct;
  • The defendant’s negligence caused injury or damage to the plaintiff; and
  • The plaintiff was, in fact, injured or sustained loss

English Common Law

This legal concept of negligence developed in the eighteenth century in English Common Law (the ancient law, based on English customs and enforced by courts, that prevailed in England and its American colonies up until the American Revolution).

At first England’s Common Law had a concept of liability for wrongful acts that hurt others. Gradually another concept emerged: that of failure to act. Liability become the legal result of a person’s failing to fulfill a contract or keep a promise, or failing to exercise skill and care in performing a service.

From this idea of a person being obliged to do what they undertake to do, and to do it as well as possible, came the idea of a person owing “a duty” to someone else. An example would be an innkeeper who owed a duty to his visitors to provide a safe place to spend the night and a proper stable for their horses. Now the idea of negligence was more fleshed-out and could more easily be applied in specific cases.

Common Law vs. Civil Law

England passed this concept of negligence to the U.S., each state adopting it except Louisiana, which adopted France’s Civil Law, based on ancient Roman law and laid out by Napoleon. Most of Europe and South America has Civil Law rather than Common Law, and the difference is that:

  • Civil Law is based on doctrines developed over the centuries by legal scholars (perhaps summarized as “nothing is legal unless the documents say it is”); whereas
  • Common Law uses precedents (prior case law) to settle the outcome of any given case (perhaps summarized as “everything is legal unless some document says it is not”).

In the U.S., the term “civil law” also has another meaning. It refers to the laws used in disputes between individuals, as opposed to criminal law, which refers to offences against the public or the government.

Negligence and “the Reasonable Person”

Negligence in a specific case is determined by comparing the defendant’s behavior to that of a hypothetical “reasonable person”. That “reasonableness” includes such things as:

  • Reasonable prudence — turn on your headlights at night
  • Use of skills expected from any given profession — check the bottle’s label before you give that medication to a patient
  • Reasonable knowledge of public information — ice is slippery; children tend to run on the road

The question is asked: Did this defendant act as a reasonable person would have acted in that same situation? Arguments are made on both sides until a jury or judge decides that Yes, the defendant acted reasonably, or No, the defendant was negligent and did not act reasonably.

Negligence can be found in many lawsuits — a company may be negligent in marketing a defective product; a landlord may be negligent in not repairing the stairs (known as premises liability); a drunk driver may be negligent in killing a pedestrian (a wrongful death case).

If you have been hurt by someone’s negligence and would like to know more about your legal situation and legal choices, please contact our Mobile, Alabama law office today for a free case evaluation.

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