What exactly is Negligence? The fear of all law students
In the dark and dreary halls of an eldritch palace where profane secrets are seared into the minds of the fools who did not know what they were seeking, there is an incantation that lies at the heart of all things. Words of power great and terrible that lord above all from below. Duty, breach, causation, and damages. That’s right friends I read some Lovecraft mythos inspired fiction this past weekend, so you are getting some Lovecraft inspired trappings (leaving out the so over the top it is almost a parody of itself racism but keeping the sanity rending cosmic horror) for our informational article on Negligence. Whooo buddy. I’ll tell you what. Negligence is a concept that intersects with, as far as I can remember, every single type of law there is. Car accident? You negligently operated your vehicle. Firing a gun into the air? Negligent discharge of a firearm. Didn’t do any background checks on the company your company is doing business with resulting in scammers stealing from you? Negligent failure to exercise due care as a fiduciary. It pops up everywhere. But what exactly is Negligence and what are the elements that make it up?
Straight from Black’s Law Dictionary Negligence is “The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. or doing something which a prudent and reasonable man would not do. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances.” More contemporarily and simply said, you did a thing you weren’t supposed to or didn’t do a thing you were supposed to do. Here is a secret, a lot of basic principles of the law are based on this unclear flowery language that is then refined over the years by judges’ decisions or statutes. Common law is as often as not, a hodgepodge of things said by people who thought soap cut you off from salvation and statutes passed as bandages. In modern times Negligence, like hip-hop, is defined by four elements and that is what we are going to get into in detail below. While on the other hand Negligence’s four elements are Duty, Breach, Causation, and Damages. Way less cool but they do represent a pretty robust body of law. Let’s get in to it.
From Cornell Legal Information Institute, Duty is a requirement to perform some conduct required by the law, custom, morality, or personal commitment. In the case of negligence, it is necessary show that the defendant in the case had a duty to the plaintiff and failed to fulfill that duty. They did not exercise reasonable care causing or allowing some kind of failing that led to damages. Now for you fancy pants wordsmiths reading this you may have noticed that some of the words I’m using to define duty are definitionally ones that describe the other elements. This lattice-work of terms and concepts mutually supporting and defining each other is fairly typical of a lot of law. But we’ve got our first term. Duty, a thing you are supposed to do or definitely not supposed to do. This is really the heart of any Negligence claim, what duty did the defendant have and how did they fail to meet it.
Next, we move on to the door bustingly named Breach. We’ll stick with Cornell Legal Information Institute for the rest of this article as well. It is on this vaunted boon to 1L’s everywhere that they define Breach as the “violation of a law or contractual duty.” Calm yourself, I know how salacious and exciting these thousand-year-old legal terms are but we must carry on. We see that Breach is defined using the previous term, indicating to you super sleuths that I was in fact on the right track in explaining that these terms are interrelated. Ending again in sweet simplicity, a breach is you doing a thing you weren’t supposed to do or not doing the thing you were supposed to do.
Our word count is way higher than expected. You know what that means desperate student who is googling for something to lightly plagiarize (literally the only plausible scenario I could come up with for you reading these articles anyone in undergrad or higher better credit me though). We’ve got another two parter on our hands. So join us next week where we’ll continue our dive into Negligence and all its constituent parts and maybe have a little bit of fun along the way. Remember though, these articles are just to give you an introduction to some common legal topics. They are no replacement for a good attorney. So please make sure you consult with an attorney before taking legal action and if you’ve been in a car wreck and want to make sure you get a fair deal from an insurance company, Call the CEO Lawyer Personal Injury Law Firm at (833) 254-2923.
More Negligence? Are you mad at me for some reason?
Welcome back friends. This time we are getting through the rest of Negligence like a desperate first year law student choking down coffee and furiously trying to memorize just one more overly complicated fact pattern. That is to say we’re doing it quickly and with only a shaky foundation on the subject. I’m kidding, B+ Torts gang here guys and I went to a law school that doesn’t just hand out A-‘s to anyone who doesn’t decide that maybe they would prefer to work at their dad’s charity instead of their mom’s law firm. But pro-tip, at some point in law school you will be told by career services that a great way to get a summer internship is to ask lawyers in your family if their firms have any summer internships available. With a straight face. That is actually a strategy that will be given to you. Like you didn’t want to cash in on nepotism and instead were just trying to make it on your own like the main character in a prime-time drama. Having rich parents is a cheat code to life. Anyways, fun anecdotes later it is Negligence time homie.
Last time we covered Duty and Breach of our fab four Duty, Breach, Causation, and Damages. A quick review in vernacular terms. Duty is a thing you are supposed to do or a thing you aren’t supposed to do. A cornerstone question of any Negligence claim is “what duty did the Defendant have towards the Plaintiff? If any?” That’s right, it’s never just one question with lawyers. Then we covered Breach. Which is the thing you weren’t supposed to do but did anyways or the thing you were supposed to do but didn’t. Or allowed/disallowed to happen as the case may be. If you establish that someone had a Duty to you, what did they do or not do that they were supposed to? Now we are in new territory and we will continue humming right along.
That brings us to what can be kind of a bear to deal with, Causation. Because surprise! There are two kinds of causation, Factual and Proximate cause. Factual cause is pretty easy, it is the actual cause that But-For the result in question could not have happened. You didn’t properly secure a chain and it swung free picking up a child and flinging him a hundred yards away to safely land in a lake. I’ll never be a torts professor with those sorts of uninjured children in my hypotheticals. Factual causation is a bright line, factual cause of an incident. Alternatively, we have Proximate Cause. If Factual cause is a straight line, Proximate cause is a row of dominoes. If you say, trigger an enormous Tannerite explosion in order to announce the gender of your child and it turn causes a massive statewide wildfire that burns hundreds of acres of land as well as hundreds of people’s homes you would be the proximate cause for the house fires. You had a duty to not be insanely dumb with explosives but you did it anyways. And then after being dumb with explosives you probably should have made sure that any fires were put out. I mean you caused the explosion, so consequences of the explosion are your duty to deal with as well. The fire spread out of control. Blammo, neighborhood is gone. All because a cake with pink filling wasn’t high T enough for announcing you were having a daughter? I guess? I’m getting rightfully judgey but I think you are picking up what I’m putting down. Factual or actual causation a direct cause and effect relationship. Proximate cause, a sometimes horrifying chain of dominoes that can topple in truly spectacular ways.
Finally, we have our good buddy Damages. In short Damages are the money costs of the thing that happened to you. Our child who was thrown in a lake with no injuries? You would probably still take him to the hospital to check him out. That is what you would sue for, the cost of all those medical check-ups to make sure his flight didn’t leave any injuries. Sure, maybe you could try and float a Negligent Infliction of Emotional Distress but that almost never works and I don’t have enough space to even explain what that is.
Speaking of which let’s wrap it up with a review. If any fancy pants lawyer tries to get all highfalutin with you and expects you to not know what negligence is ask that such and such to break down the Negligence claim by the elements; Duty, Breach, Causation, and Damages. Then go ahead and ask him what kind of Causation you are dealing with, factual or proximate. Bingo bango you’re now more educated on 90% of the people who aren’t J.D.s or work with them. That’s all for this week folks join us next week where we’ll continue our drive to educate you on some legal concepts and maybe have a little bit of fun along the way. Remember though, these articles are just to give you an introduction to some common legal topics. They are no replacement for a good attorney. So please make sure you consult with an attorney before taking legal action and if you’ve been in a car wreck and want to make sure you get a fair deal from an insurance company, Call the CEO Lawyer Personal Injury Law Firm at (833) 254-2923.