Negligence - Why it Matters in Everyday Life
Posted Thursday, October 06, 2016 by Ed Harper
Whether we are at home fixing dinner for our family, driving on the road, or sitting in class with our schoolmates, certain rules exist which provide for our well-being. Western Civilization – specifically the United States – has articulated societal rules, laws, or statutes, to protect all of us from the potential detrimental effects of each other’s bad behavior. Since the days of John Locke in the 1600’s, and ultimately Thomas Jefferson in 1776, when he so famously articulated the phrase in the Declaration of Independence that we have “been endowed by their Creator with certain unalienable rights that among these are life, liberty, and pursuit of happiness” we have enjoyed these rights and our freedom.
Thus, we the people have enacted certain statutes to protect our freedom.
Washington has stated by and through the Supreme Court and a committee on jury instructions, the law which is read to juries prior to start of their deliberations on any civil or criminal case. The rule on negligence found in WPI 10.01 states:
“Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to act that a reasonable careful person would have done under the same or similar circumstances.”
The definition for ordinary care can be found in WPI 10.02 as well:
“Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances.”
These sound somewhat repetitive, and they are to some extent. First – as my father used to say – there are errors of omission (not performing an act) or errors of commission (performing an act). Second, acting reasonable or with reasonable care is fact specific. This is where liability questions in tort cases are centered.
Another way to interpret Negligence is to understand there are four (4) elements: Duty; Breach; Proximate Cause; and Damages. The definition of negligence stated above deals with the first two elements – duty and breach. The allegation of whether the defendant failed to act reasonably is the crux of our personal injury law. Questions arise –
- Whether it is in how we interpret the rules of the road; or
- Whether an accountant did our taxes correctly; or
- How a doctor performed a surgical procedure.
All of these have to answer the question – Did the person (or corporation) act like a reasonable person?
So, even though this definition seems rather straightforward, it is often very difficult when people ask a question such as “do I have a case when …” (you insert the facts). I often have to give them an answer such as “it depends”. It depends on ascertaining what a “reasonable person” would have done in a particular situation. Thus, while we have rules of conduct, these often become the subject of much argument and conjecture as we bring the case towards trial.
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