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Negligence and Why It Matters

Updated on October 15, 2014
AudreyHowitt profile image

Audrey is a poet, classical singer and voice teacher, recovering attorney and licensed psychotherapist.

Law books cover both statutory and common law including negligence
Law books cover both statutory and common law including negligence | Source


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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    • AudreyHowitt profile image
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      Audrey Howitt 12 months ago from California

      Thank you peachpurple!

    • peachpurple profile image

      peachy 2 years ago from Home Sweet Home

      Negligence is a bad habit

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      They can be really slow! Good luck with it!!

    • Sunshine625 profile image

      Linda Bilyeu 2 years ago from Orlando, FL

      I couldn't remember how long it had been since I mentioned to you about the county replacing my communities sidewalks...well, they still haven't replaced the slabs with the pretty pink dots. It's been 7 weeks since I commented here. Hopefully one day, we all know how SLOW the county works.

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Hi rasta1--no, not a big fan! Thank you!

    • rasta1 profile image

      Marvin Parke 2 years ago from Jamaica

      Baesd on your line of reasoning, I don't think your a big fan of politicians.

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you fpherj48!!!

    • fpherj48 profile image

      Paula 2 years ago from Beautiful Upstate New York

      Audrey......I am always pleased to learn more and more about the law. I truly believe it's our responsibility to be informed. I clearly recall learning at a young age, one very important message: "Ignorance of the Law is no excuse." Initially I was angry, thinking, "How can this be that we are all expected to KNOW?!" So I did what I usually do when curious and took a few courses, did some research and (old-fashioned study, IN A LIBRARY) and answered my own question.

      Gaining knowledge is never time wasted....even when I eventually married an Attorney!....LOL

      Voted Up U&I

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you RTalloni!

    • RTalloni profile image

      RTalloni 2 years ago from the short journey

      Interesting and entertaining with a compelling closing. Competing interests in society alone is a lot to think about. One has to take a moment to reflect on what society would look like if everyone looked out for the interests of others as well as they do their own.

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you Anna Haven!

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Very good Linda!!! Congrats!!

    • Sunshine625 profile image

      Linda Bilyeu 2 years ago from Orlando, FL

      I have great news!! The county is replacing the sidewalks in my community! The ones that are cracked or uneven. My sidewalk is fine, but neighbors on both sides of my house are finally getting theirs fixed :)

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you Radcliff!

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you Michelle!!!

    • midget38 profile image

      Michelle Liew 2 years ago from Singapore

      Sharing this again, Audrey!

    • Anna Haven profile image

      Anna Haven 2 years ago from Scotland

      Hallo Audrey

      Very interesting. You are clearly a multi skilled lady, and I look forward to more poetry and now also factual hubs.

      Anna

    • Radcliff profile image

      Liz Davis 2 years ago from Hudson, FL

      So interesting! I like how you used Daisy for your illustration. It's fascinating how complex these cases can be. For example, the famous McDonald's coffee lawsuit. There's more to it than meets the eye. I fear we tend to jump to conclusions before we get all the facts or understand the law. Thank you for sharing this, Audrey! I hope to read more about your law experiences.

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you PegCole--comparative negligence--there are so many cases on the books--

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you for reading this one DDE!

    • DDE profile image

      Devika Primić 2 years ago from Dubrovnik, Croatia

      You have shared such an interesting insight about negligence.

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you James-wolve!

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you Vellur!!

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Hi Audrey. You need to give the person notice that you now consider the item abandoned. I will email you with the particulars under CA Law

    • AudreyHowitt profile image
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      Audrey Howitt 2 years ago from California

      Thank you DealForALiving!

    • PegCole17 profile image

      Peg Cole 2 years ago from Dallas, Texas

      I love this sort of philosophical and legal consideration of a situation. Both sides can be defended, yet, it seems like people tend to look elsewhere for remedy to their own negligence. Daisy was day dreaming and tripped. If she tripped in her own home over a dog toy would she sue the dog toy manufacturer? When does responsibility for our own actions kick in?

      I love reading on this side of your talents, Audrey. Definitely write more.

    • DealForALiving profile image

      Sam Deal 2 years ago from Earth

      I never thought I'd read a legal Hub and I am pleasantly suprised! Thanks for writing this up.

    • vocalcoach profile image

      Audrey Hunt 2 years ago from Nashville Tn.

      Hello Dear Audrey

      What a sensational hub! Do consider writing more about law. I have a question. For the past 12 years I have been storing a small grand piano for a man. I've waited all these years for him to make arrangements to pick it up. I even paid the expenses to have it moved from California to Tennessee where it remains. During this 12 year period he promises to take it, but never does. I can no longer be responsible for the piano. What recourse do I have?

      Thanks so much. ~ Audrey

    • Vellur profile image

      Nithya Venkat 2 years ago from Dubai

      Informative and useful information about negligence, there are different aspects that we are totally not aware of. Thank you for sharing.

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Hey Jackie--thank you!!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thanks Jackie! New here --but that side has been around a looooong time--

    • Jackie Lynnley profile image

      Jackie Lynnley 3 years ago from The Beautiful South

      Well Audrey; a new side to you. I am very impressed! ^+

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you Michelle!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you for reading this one Suzettenaples--I am a person of many hats--for good or ill!

    • James-wolve profile image

      Tijani Achamlal 3 years ago from Morocco

      Very wonderful article.Here in Morocco,if you walk while your head upright maybe you would be ended in a hospital hehe pavements not on the same level and most of them full of holes lol let me relate you something funny not about pavements but about roads greeee .Once as a child ,I was sitting on a chair beside me there were pretty girls ..when a man was driving his car kept looking at them and then suddenly OOPS a front wheel fell in a hole .He flied into rage at them but one of them said to him Hey you did we ask you to look toward us?and then they bursted out in laughter.How we call this kind of negligence ? lol

      Have a wonderful weekend!

    • midget38 profile image

      Michelle Liew 3 years ago from Singapore

      Thanks for clearing the finer points of these legalities with us. I didn't know you were in the legal profession too!!

    • suzettenaples profile image

      Suzette Walker 3 years ago from Taos, NM

      A really interesting and important article for me. I have suffered from someone's negligence and this article makes it painfully clear to me. I had no idea you were an attorney, Audrey. An attorney that writes poetry! That is unusual that you can both the linear and the creative at the same time. Left brain? Right brain? Both? This article is just as interesting as your poetry. Thanks for sharing your knowledge with us. Voted up+ and shared.

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Hi Tillsontitan--so much of negligence is based on the issue of foreseeability--therefore having knowledge of a defective condition --or the old stand bay--"should have had knowledge" is a requirement

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Oh the sidewalk maintenance issue drives me buggy!! Same thing with parking strips and trees! Good luck DzyMsLizzy!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you AliciaC for reading this one!

    • tillsontitan profile image

      Mary Craig 3 years ago from New York

      Very interesting Daisy. I certainly do not share your expertise but worked for a negligence attorney for a number of years.

      One of the things that needs to come into play is prior knowledge. If the homeowner had no prior knowledge of the condition is he stil responsible? If he was put on notice of the condition then he is certainly responsible for not fixing it.

      Well done and very interesting.

      Voted up, useful, and interesting.

    • DzyMsLizzy profile image

      Liz Elias 3 years ago from Oakley, CA

      Aha!! A countersuit for negligent supervision of a minor child.

      Great idea--though I hope it never happens here!

      Now, what say you about my opinion on the sidewalk maintenance issue??

      ;-)

    • AliciaC profile image

      Linda Crampton 3 years ago from British Columbia, Canada

      This hub is very interesting, Audrey. I love reading your poems, so I very much hope that you continue to create poetry hubs. The addition of informative and thought provoking law hubs like this would be wonderful, though!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you MsDora!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      You crack me up Ruby! Thank you!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you Jo! Hopefully there will be more of these coming along shortly!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you for reading this Chitrangaga!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you Ann! I think you raise an interesting question--can we trust the law? It is one I ask myself regularly, especially regarding the criminal law system in the U.S.

    • MsDora profile image

      Dora Isaac Weithers 3 years ago from The Caribbean

      Thanks for sharing your legal insight on negligence--a matter which is usually up for debate. Looking forward to some more of your legal expertise on everyday matters.

    • annart profile image

      Ann Carr 3 years ago from SW England

      A lawyer and a poet! I wouldn't have put those two traits together and it probably doesn't happen very often. Well done!

      For a while now, we have become a society based on litigation here in Britain and they say it comes from the US! I don't know if that's true but I do worry about people not taking responsibility for their own actions.

      At the same time, people have a responsibility to maintain something under their jurisdiction.

      I guess reasonable argument comes into this but can we trust the law to carry this out and deal with a situation fairly!

      You've put forward so many interesting questions here and made us all think, which is a good thing. It's easy to blame someone or something else - how many times do we acknowledge our own negligence?

      By the way, I love the image of Daisy Duck and her new diamond ring!

      Priceless!

      Ann

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you for reading this one Jamie--I do love the law, just not how it is practiced

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Hi Frank--I k now it feels a bit like law 101, but I am hoping you got something of the policy considerations underneath all the legalese

    • always exploring profile image

      Ruby Jean Fuller 3 years ago from Southern Illinois

      A lawer and a poet, love it! This is really useful.I think Daisy Duck should've been looking where she was walking and the homeowner should've called the city for repairs, that's what i would do, but now, after reading this, i would take a picture of me reporting it. Hee..

    • tobusiness profile image

      Jo Alexis-Hagues 3 years ago from Bedfordshire, U.K

      This is a useful and informative article, like most of the people who have already commented, I would also love to read more like this. Excellent!

    • ChitrangadaSharan profile image

      Chitrangada Sharan 3 years ago from New Delhi, India

      Very useful, helpful and informative hub!

      How ignorant are we about our legal rights! Interesting example and food for thought.

      Thanks for sharing your knowledge as an Attorney. Voted up!

    • jhamann profile image

      Jamie Lee Hamann 3 years ago from Reno NV

      I like to read these passionate hubs. This is the stuff we have dedicated our lives to for so many years. Your presentation shows your dedication. I can't wait to read more. Jamie

    • Frank Atanacio profile image

      Frank Atanacio 3 years ago from Shelton

      law 101 :) sometimes breaking down laws makes it easy for all to understand.. failure to exercise the care toward others which a prudent person would do in the circumstances, or taking action which such a reasonable person would not it's like a second language and thank you for the hub.. and breaking it down

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you Flourish!!!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Bill, what a thought provoking comment! I just touched on the elements and policy considerations here--there is a lot to be explored within the context of what is contained in this article--in answer to your question of whether society or negligence has changed, the answer may lie in how you view litigation. The tort reform side says that we are far too litigious and that the avenue toward recovery should be circumscribed. I do agree that we are far too litigious, but that may be in response to corporate America's lack of responsibility toward the populace in general. For instance, I think we will continue to see asbestos litigation and tobacco litigation continue to increase. That type of response by litigation is often needed to keep corporate consciences in check. On the flip side, the increase in litigiousness could be viewed as a collapse of our individual sense of responsibility to society. I have litigated on both sides--plaintiff and defense work--and unfortunately, the unscrupulous are everywhere

    • FlourishAnyway profile image

      FlourishAnyway 3 years ago from USA

      You should definitely consider additional hubs in this area of your expertise. It lets people see how complex such issues really can be. You rock!

    • billybuc profile image

      Bill Holland 3 years ago from Olympia, WA

      There is fodder for about one-hundred separate debates in this one article...and certainly enough for a series of articles. You have raised some very interesting questions here....very well done. Is it my imagination, or has negligence grown in importance in the past couple decades? Of course it was a legal issue in the 50s and 60s, but we didn't see the number of lawsuits then that we see today. Has negligence changed or has society? :)

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Hi DzyMsLizzy!! Try countersuing for negligent supervision of the child--it works in defense of attractive nuisance cases!

    • DzyMsLizzy profile image

      Liz Elias 3 years ago from Oakley, CA

      Interesting, but maddening.

      I have always had an issue with the sidewalk scenario as you painted. That is the case in most major cities today, but it is eminently unfair: Let ME decide that I want some other surface, or a decorative sidewalk, and I will instantly be in trouble for tearing up and destroying CITY property! The sidewalk is installed and is owned by the city.

      Why, then, should the burden of upkeep fall to the homeowner, who is not allowed to do anything else with said sidewalk?! If I must maintain it, then let the city transfer the ownership, and extend my property line out to the boundary with the street! Otherwise, use the tax dollars collected from the homeonwners for doing the required maintenance yourselves! Starting with researching the right kind of trees so you don't plant street trees with roots that are liable to lift sidewalks! Grrr.

      Another one that chaps my hide is the "attractive nuisance" provision in law. Let some kid come into my yard and climb a tree, or fall into my pool (if I had one!), and I GET SUED??? For "maintaining an attractive nuisance??!!" Excuse the holy blankety-blank-blank out of me, but the kid was TRESPASSING, and had no business on my property. How about let the parents teach kids respect and honor and to keep out of things that aren't theirs? Failing that (and it obviously has failed), then hold the parents liable for the damages to their kid caused by his/her failure to respect property rights!

      IMO, the law places too much emphasis on shifting blame, and not enough, as you said in your opening, upon being proactive instead of reactive. And the further fault in this country is, you get only the amount of "justice" you can afford to buy!

      **end rant. Voted up, interesting and useful.

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Hi Faith! I was joking with a friend and said that I should write other articles to support my poetry habit! Thank you for reading and commenting!!!

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Thank you Daisy! I have been thinking about doing that. Nice to know there might be some interest out there for that sort of thing

    • Faith Reaper profile image

      Faith Reaper 3 years ago from southern USA

      Hi Audrey,

      I came to read your latest and superb poem, and much to my surprise and delight, you have posted a most informative hub here. I am very concerned too when we fail to answer these questions in ways as you have stated here.

      In my daytime life, I work in the legal field as a paralegal and we are charged with the arduous task of attempting to keep public officials and public employees ethical ... sigh.

      So nice to see you writing in a different genre here, although, I will always love reading your poetry.

      Yes, the municipality should maintain the sidewalks as they are on the right-of-way, at least in my mind, the one who is responsible. However, it is up to residents to report such to the appropriate officials in the city.

      Voted up and more and away

    • Daisy Mariposa profile image

      Daisy Mariposa 3 years ago from Orange County (Southern California)

      Audrey,

      Thanks for publishing this very informative article. I would love to see you write a series of Hubs explaining legal issues in terms non-lawyers can understand.

    • AudreyHowitt profile image
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      Audrey Howitt 3 years ago from California

      Not sure where you live Linda--but let the city know there is a problem--take pictures and document the problem to them in a letter--make sure you keep a copy --

    • Sunshine625 profile image

      Linda Bilyeu 3 years ago from Orlando, FL

      I was just discussing the sidewalk issues on our block with my husband today! Luckily I didn't have a Daisy moment and neither did Dave or Lily, who is 17 months old and loves running along the sidewalk, but it's time for me to take matters into my own hands since my neighbors obviously don't care that their sidewalks are not level. Lily noticed, she stops at each raised area (there are four) pauses and takes a step up and when we come back, she takes a step down. I'm a proud granny :) Thank you for the push I need to get 'er done.