Negligence and Why It Matters

Introduction

We all think about the law in terms of its rules and structures. We worry about getting sued or evicted. We worry about guns on the streets. We worry about our individual rights. But we as a society are reactive rather than proactive in terms of legal rights and privileges. We understand some of the laws on the books, but on the whole, we do not understand why they are on the books.

Jurisprudence, or the study of the law and legal theory,has always fascinated me. Most of you on Hubpages know me as a poet. But there are other sides to me. I have been a licensed attorney for over twenty years. My two favorite classes in law school? Constitutional law and antitrust law. Both of these areas of law have their legal underpinnings grounded firmly in policy.

The underpinnings of legal structure, or legal philosophy is what drives me. Turning that same attention to the area of negligence, this article will explore the underpinnings of basic negligence and explore the reasons why this matters.

Negligence

Let's start with a scenario, common grist for the mill so to speak. Daisy Duck is walking down the street carrying her favorite purse and whistling. It is a beautiful day; the sun is shining, and Daisy looks at the trees in the parking strip, sees the foliage rustle in the breeze and is generally feeling pretty good. Donald proposed to her last night and when Daisy isn't looking at the trees, she is admiring her new diamond ring.

Daisy doesn't notice that the sidewalk in front of her isn't quite level. In fact, the next sidewalk square in front of her is raised about an inch from the one she is treading on at the moment. Poor Daisy! She catches the toe of her right foot on the sidewalk lip in front of her. Over she goes, breaking her right hand as she tries to stop her sprawl. And Daisy's ring suffers as well. The stone falls out of its setting and cannot be found.

The homeowner, whose sidewalk Daisy trips on, comes out to see if she is ok and apologizes. The main question underlying the cause of action for negligence is: "Who is responsible and how should that responsibility be allocated?" Ah, a matter for jurisprudence!

Elements of Negligence

Negligence has the following five elements, all of which need to be met for a viable cause of action to exist.

1. Duty: A duty of care from one person to another;

2. A breach of that duty;

3. A causal connection between the defendant's action and the harm caused (factual cause);

4. Proximate or legal cause (this assumes that factual cause exists, and then asks the question of whether legal cause exists.)

5. Damages.

While these sound simple, each of these elements are complex in nature. This article will explore the policy underpinnings of these elements.

1. Duty

Duty is the glue that binds and connects one person to another in society. Duty provides a structure for enabling us to make choices given our perceived responsibilities toward one another and it also provides a framework for judging those choices and their effects after the fact.

In essence, duty allows us to determine whether the choices made caused harm or improper behavior to another. In so doing, we balance the needs of one segment of society against another. It also provides a mechanism by which to allocate and attenuate risk. The further the relationship between the parties, the more attenuated the risk. The closer the contact, weighed against the potential harm, the greater the sense of duty owed.

In our illustration, the question is who, if anyone, owes a duty to Daisy Duck to keep the sidewalk in good repair. Does the adjacent homeowner owe a duty to her? Suppose the homeowner had already notified the city that there was a problem with the sidewalk. In that situation, does the city then owe Daisy a duty of reasonable care?

2. Breach

Normally referred to as breach of duty, breach pertains to the improper act or omission that causes harm to another. This element is predicated upon a standard of care or a level of action that we deem acceptable in society to prevent undue risk of harm to others. In that sense, breach is related to the concept of duty.

While special standards of care arise in some relationships, the normal standard of care required in our actions with others is a reasonable one. We must act with reasonable care toward others to avoid harm. This objective standard is linked to a societal norm of good behavior. The question is how would a reasonable person have acted in the same set of circumstances.

If the homeowner had responsibility for the care and upkeep of thee sidewalk in front of his house, does the time period that he had knowledge of the defect and failed to fix it bear on his breach of duty to Daisy Duck? Does the homeowner have an affirmative duty to notify the city of the problem in a timely fashion? Does the city then have an affirmative duty to repair the sidewalk? Would the analysis change if the defect arose at a time when the property were vacant?

3. Cause in Fact

Causation to is based in policy. It is not enough to show that the defendant's conduct caused harm. The plaintiff must show that the defendant's negligence caused the harm. It must be linked to that aspect of the breach of duty to be compensable. But for the action, would the harm have occurred.

Did the failure of the homeowner and/or city to inspect and/or repair the sidewalk directly cause harm to Daisy?

4. Proximate Cause

There is no thornier issue in negligence than that of proximate cause. Proximate cause asks the question of whether it is fair in fact, relationship, policy, logic, and practicality, to hold the defendant liable for any damages his or her negligent action caused. It is a legal mechanism to determine the proximity between the bad act and the harm caused. It can also be seen as a mechanism to limit the responsibility of a tortfeasor for his or her bad actions where the action is highly attenuated from the damage.

Should we as a society hold this person legally liable? The answer to this question has spawned more legal battles than any other question within the realm of negligence. Is it fair to hold someone liable? It depends on how foreseeable the harm is.

In our illustration, a one inch lift n=between sidewalk squares is significant. It is foreseeable that someone might trip. The more interesting question in this scenario is whether Daisy is liable for some of her own damages. She was in a daze of happiness, gazing at her ring, at the trees; gazing everywhere except the sidewalk in front of her. So is she liable for some --for all-- of her damages?

5. Damages

The harm suffered must be a proximate result of the defendant's breach of duty. A less thorny issue but still one that is litigated with some frequency. Was Daisy's lost gemstone a proximate result of the defendant's breach? Or was that damage a result of the jeweler's poor skills in setting the stone?

Conclusions

Most of the elements outlined above are based in policy: questions of what we as a society deem to be proper behavior, questions about what we believe to be fair, questions about how to balance competing interests in society.

In finding answers to these questions we decide what we want our society to look like, how we want it to function. We determine our values and set them forth for others to live by.

I worry about how we answer these questions and I worry when we fail to answer these questions in ways that are thoughtful, compassionate and based on honoring the rights of people within our society.

copyright/all rights reserved Audrey Howitt 2014

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