What is Negligence in the Legal Sense?
What is Negligence?
The simple definition of negligence is the failure to take proper care, and, as a result, that failure causes injury or damage to someone. The best way to explain negligence is with some examples:
- If you fail to fix the roof in your office and a client comes into the office and the roof fails on the client, causing injury, that's negligence.
- If you hire an employee and fail to properly train the employee and the employee harms someone in the course of their duties, you can be subject to a negligent hiring complaint.
- If one of your drivers backs out of your driveway without looking, and they back into someone, that's negligent driving.
Negligence involves a duty of care, and the standard is what a reasonably prudent person would have done in a similar situation. Whether negligence exists is decided in a court.
The definition, broken into its parts, says that there was a failure to take care and that failure caused damage to someone else. Note that the care required depends on (a) a reasonably prudent person, and (b) the specific situation.
Conditions for Negligence
In order for negligence to be proven in court, four conditions must be met:
- It must be clear that there was a duty to act
- It must be proven that there was a failure of the duty to act
- It must be proven that this failure was the proximate (direct) cause
- And it must be proven that harm was caused. (No harm, no foul, so to speak.)
Another way to state this concept is to say that an individual failed to exercise his or her duty to protect others from harm.
For example, in the first case above, a business owner has a duty to make sure the office is safe for customers. If the owner fails to act to make sure that the office is safe, and the owner's failure is the cause of harm to another, that's negligence.
In the second case above, the owner had a duty to be sure employees were properly trained. The owner failed to do that, which could be the cause of the harm.
If any of these four points, in order, cannot be proven, negligence is not present. For example, although harm may have been caused, if there was no duty to act, there is no negligence. Or, if it can be shown that the duty to act had nothing to do with the harm (that it was not the cause of the harm), negligence cannot be charged.
Be careful not to mix up negligence with illegal actions. For example, if one of your employees assaulted a customer, that's outside the bounds of the employee's duties (and it's also against the law). (This doesn't mean that the owner might not be charged.)
How Standard of Care is Determined
The standard of care definition relates to the degree of care that a reasonable person would have exercised in the situation. The concept of standard of care is based on a "reasonable person" standard, which changes based on circumstances. For example, what is reasonable for an average person in a medical emergency situation is not reasonable for a medical doctor, who is held to a higher standard.
Innkeepers have a higher standard of care required to keep lodgers safe. Florida law, for example, requires that " “each bedroom or apartment in each public lodging establishment shall be equipped with an approved locking device on each door opening to the outside, to an adjoining room or apartment, or to a hallway.”
Malpractice as a Form of Negligence
When you hear the term "malpractice," you assume it's about a doctor, but malpractice is simply negligence by a professional. Professionals are held to a higher standard of care because they must have a license or certification to do what they do and they have to abide by the legal and professional code of their profession. Malpractice applies to all kinds of professionals, including doctors, dentists, chiropractors, attorneys, and accountants.
Defenses to Negligence
The two common defenses to negligence are contributory negligence and comparative negligence. Both affect a plaintiff's ability to collect damages in a negligence case. A contributory negligence defense says that the plaintiff contributed to the situation, while comparative negligence says an individual might be able to collect damages is based on the degree or percentage of liability.
Contributory Negligence: If the injured party had any fault at all in the case (even as little as 1%) they would be barred from collecting damages as a result of someone else's negligence.
Comparative Negligence: If someone is drunk and speeding, damage to someone else's car might be considered at 80%, but if the other party was distracted by talking on a cell phone, the court might decide they were 20% responsible, and the award would be reduced by that much.
Laws regulating negligence are different for each state. Most states use comparative negligence, and only a few use contributory negligence. This article lists all U.S. state negligence laws and which system they use.
Protecting Your Business from Negligence Lawsuits
You can't watch everything and everyone all the time, but you can lower the possibility of negligence claims against your business. Here are a few quick examples (there are many more):
- Follow OSHA guidelines and requirements. OSHA is the federal law protecting employees from workplace hazards. But it can also protect customers too. For example, make sure you have warning signs in hazardous places.
- Train employees in using care when working, to prevent accidents and injury to themselves and also to customers.
- If your employees have specialized training (like plumbers or electricians) make sure they are licensed and complete all certification requirements.
Overall, the best way to minimize negligence claims against your business is to be constantly aware of your "duty of care" to employees, customers, suppliers, and the public.
Legal Information Institute. "Negligence," Accessed Nov. 7, 2019.
The Law Dictionary. "Standard of Care," Accessed Nov. 7, 2019.
The Law Dictionary. "Negligent," Accessed Nov. 7, 2019.
The 2019 Florida Statutes. "Florida Statute 509.211(1)." Accessed Nov. 7, 2019.
The Law Dictionary. "Professional Standard of Care," Accessed Nov. 7, 2019.
Legal Information Institute. "Malpractice." Accessed Nov. 7, 2019.