University of Vermont AAHS

Negligence Oversimplified

Jan Dawson
President, AAHS

Why do we care? Negligence keeps the peace; it replaces vengeance.

In general, very general, negligence refers to a person's failure in a duty to another (or others) to be careful thereby allowing a foreseeable accident to cause harm.

Whose failure? Negligence is a failure in a duty to someone, not just anybody but certain anybodies, and it implies a standard of conduct.

A person is required to behave in the way in which a reasonable and prudent person in a similar situation would behave.

This standard is no longer local. Many courts are saying to various groups of professionals that because of the information superhighway all have access to the same information, therefore, all should be under the same duty of care. In practice, this means that the expert witness presented by the other side in a lawsuit to attempt to establish the standard governing the situation at hand may be a highly sophisticated practitioner of the profession - whether doctor, lawyer (it you agree that they have standards) horse trainers, riding instructors, or architects.

The non-professional standard or that to be followed by the average person in a position of responsibility is that she/he need only do the reasonable and prudent thing in the given circumstances. She/he needs only a reasonable amount of "foresee - ability".

THE UNAVOIDABLE ACCIDENT - The "freak" accident, which all lawyers know from school is an accident considered unavoidable or inevitable at law if it was not "proximately" caused by the negligence of any party. Not a popular doctrine anymore as many members of the bar seem to be increasingly able to convince judge and/or jury that someone was responsible. If you don't want to be tagged it will be necessary to view the world somewhat through the eyes of a plaintiff's attorney.


A cause of action - a lawsuit
The elements of a cause of action - what must be proved to win.
Elements of a negligence action:
1. that there was a duty and what that duty was.
2. That the duty owed was breached: a failure on the person's part who owed the duty to conform to the standard required.
*The defendant may have been negligent but he is not liable unless he had a duty to the plaintiff.
3. A reasonably close causal connection between conduct (breach of the duty) and the resulting injury, sometimes called "proximate cause."
4. Actual loss or damage suffered by the person(s) to whom the duty is owed. Proof of damage historically is an essential part of the plaintiffs case. Nominal damages for an offended right cannot be recovered in a negligence cause of action.
**The truck accidentally dumped 40 sheep in downtown Wichita resulting in some inconvenience but no damage was done to person or property, hence, no negligence action. That does not mean, however that there is no action at all. There would be plenty of room for a criminal action so don't try it.

Unreasonable risk - a risk of causing damages that no reasonable person would take.

***The 14-year-old girl riding the stallion is not likely to be tossed. Not much risk. She may, however be unable to prevent the stallion from mounting a mare ridden by another youngster. This is beyond unreasonable into really dumb from a lawyer's point of view.

Risk is risk - no intent, not on purpose, just mostly thoughtless, careless, inadvertent - all words traditionally linked to negligence.

Related sources of liability not from carelessness
informed consent
Liability extends not only to the person to whom the statement was made but also to anyone endangered by it.

****Think product liability, saddles, loaned horses, anything where someone in relying on your judgment. There may be a duty to be prudent and complete in your assessment and representations.

Misfeasance and malfeasance
Acts and omissions are the lawyer's playground. If it is not what you did, what about what you didn't do?


Contributory Negligence - The plaintiff's conduct contributes to the damage done to himself and fails to meet the standard that she/he has to care for her/him self. This defense does not mean that the defendant has been relieved of any duty toward the plaintiff. The defendant may be otherwise liable but in a case of contributory negligence the plaintiff's own negligence bars recovery. Some would prefer "contributory fault.

Avoidable consequences - similar to the above and meaning: If you see it coming, move before it runs over you.

Last Clear Chance - Little agreement and endless discussion but valid in some form in most jurisdictions. It has its origins in an 1852 English case, Davies v. Mann, 10 M.&.W. 546, 152 Eng. Rep. 588. In this case the plaintiff left his ass tied in the road and the defendant drove into it. The plaintiff was able to recover even though he was also at fault. The theory is that the defendant had the last clear chance to avoid the accident. Admittedly the case might go differently today. Or with "proper care" he could have avoided the accident.

The defense of last clear chance is a modification of strict contributory negligence: In contributory negligence P sues D to recover for the ass. But P tied the Ass in the road so P loses since his own negligence killed the ass. The defense of "last clear chance" says that D should have seen the ass in the road so even though P shouldn't have tied it there, he recovers anyway because D should have been paying more attention (been more careful).

Comparative Negligence - This defense relieves the burden of the doctrine of contributory negligence. Instead of placing the entire burden of liability for a loss on one individual when two are responsible. The courts have moved more and more away from absolute rules and this is as true with comparative negligence as it was with contributory negligence. In "pure" comparative negligence the plaintiff's own fault, while not barring recovery, only allows him to recover if he was less than 51 per cent responsible. If the plaintiff is held to be 51 per cent responsible, he loses. If the plaintiff is held to be 40 per cent responsible, the defendant need pay only 60 percent of the assessed damages.

Assumption of Risk - In its simplest form this means that the plaintiff has given, in advance, his express consent to relieve the defendant of an obligation of conduct toward him. She/he will take his chances with a known risk. Think, "ride at your own risk" or "No spectators beyond this point" although the situation today is a bit more complicated. Parties may agree in advance, hence the liability agreement. The agreement must be reasonable. A pedestrian cannot absolve drivers of their duty toward him. But it need not be written. Spectators assume the known risks of flying baseballs, hockey pucks, golf balls, but not roller coasters that jump the track, livestock that escapes, or loose livestock in an area where none is expected. A person who joins a sheriff's posse drill team can reasonably assume that the horses of the other members do not kick when in close company.

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