UNDERSTANDING NEGLIGENCE LAW


Negligence is one of those basic legal concepts that is easily stated and easily misconstrued. In the modern age, negligence law has come to define the expected standard of human conduct replacing, for some people, ideas of honor, propriety, and simple right and wrong. An understanding of general negligence principals is essential whether you are a businessman, employee, independent contractor, or customer. Set aside what you know about negligence and read from this point to the end of the article with a virgin mind. Then go back and reflect on your experiences.
 

NATURE OF THE GENERAL NEGLIGENCE DUTY

The idea of negligence grows out of hundreds of years of law making by judges who defined negligence in broad terms. The courts wanted a rule by which to judge conduct, but they wanted the rule to be flexible enough so that the rule could be applied in various circumstances. As a result, the courts developed a general definition of negligence that could be read to a jury or contemplated by a judge and could be applied to the circumstances of an accident as the judge or jury saw fit.

Technically, negligence is an allegation or accusation. The duty to avoid being negligent is defined in terms of ordinary care. Ordinary care generally means the degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. Ordinary care is the duty to act reasonably.

 Negligence is generally defined as the failure to use ordinary care. A person fails to use ordinary care if he/she does something that a person of ordinary prudence would not have done under the same or similar circumstances. Failure to use ordinary care can also occur by omission, or failing to do something which a person of ordinary prudence would have done under the same or similar circumstances. Negligence, then, is a judgment of both acts and omissions.

Consider, for example, a car wreck case. The drivers involved can be found negligent for doing what they should have not done, e.g., driving too fast or driving on the wrong side of the road; or, they may be found negligent for failing to act, e.g., failing to slow down, failing to stop, or failing to drive on the proper side of the road. Whether the conduct is described in terms of acts or omissions, the conduct is judged against a standard of ordinary care.
 

SPECIAL DEFINITIONS FOR SPECIFIC CASES

People

Over time, the courts became dissatisfied with a single definition of negligence that was supposedly applicable to all circumstances. Courts began to pick and choose categories of cases for special treatment and created specific definitions of negligence to fit specific circumstances. Sometimes, the unique definition is based on the person whose conduct is being judged. A defendant who uses a skill that is unique or different from that of an ordinary citizen will be judged based on his/her increased level of skill in cases that involve the use of that skill.

For example, a regulator repair technician will probably not be judged by the ordinary person standard, but will probably be held accountable to the standard of an ordinary and prudent repair technician. Dive masters are judged by the standard of what a dive master of ordinary prudence would have done under the same or similar circumstances. Doctors are judged according to the standard of what a doctor would have done under the same or similar circumstance.

It is important, then, to stay reasonably current in your education and skill and to be aware of the influence that certification and standards agencies have on the standards of care and conduct within your area of skill. While standards agencies and certification agencies are not binding on a judge or jury, they are certainly influential and, in almost all cases, published standards are admissible in evidence at trial.

As a general rule, the law requires that all people meet the standard of conduct of an ordinary adult. There are exceptions. For example, if a child is injured in your dive shop, you will face resistance to your claim that the child was comparatively negligent. Infants and young children are generally considered incapable of negligence. Their foolish conduct is simply excused.

After a child reaches the age of five, six or seven, depending upon the state in which your store is located, the child will be held to a standard of conduct commensurate with the age of the child. In other words, ten year olds are judged by the standard of conduct of other ten year olds. Consequently, stores that are open to all members of the public must take into account that a person of any age may come into the store. Your fixed display that is intended to appeal to adults may be judged, at some point, based on its appeal and risk to an eight year old. Kid proofing is in order.

There are occasions when even a child will be held to an adult standard of conduct. If the child is performing an adult activity, which in the decided cases generally means operating a boat, car or airplane, then the child is required to act according to the standard imposed on reasonable, prudent adults. Kids who operate motor boats are expected to avoid dive flags and divers with the same degree of care that an adult would exercise.
 

Places

Negligence may also be defined in terms of the physical location of the incident. While some states have gone back to a general rule of ordinary care for land owners, most jurisdictions treat premises liability as a separate species of negligence law and take into account:

1. The fact that the incident involved a condition of land, building, or fixtures; and

2. The status of the Plaintiff or injured person as an invitee, licensee or trespasser.

Invitees are on the premises at the express or implied invitation of the owner or renter of the land, building or apartment. Invitees come on to the property as members of the public in response to the owner's or possessor's invitation to the public, or they enter the premises for a purpose connected with the business of the owner or possessor of the property.

The occupant of the premises is considered negligent with respect to an invitee, as a general rule, if the injury results from a condition that posed an unreasonable risk of harm, and the occupant of the premises knew or should have known of the condition, and the occupant failed to exercise ordinary care with the respect to the condition. Ordinary care still means acting as an owner or occupier of ordinary prudence would have acted under the same or similar circumstances and generally means that the owner or occupier has a duty to warn of the condition or to make the condition safe if a reasonable landowner would have done so.

Licensees are people who are allowed on the premises for some reason other than business or contractual relations with the occupant. Most definitions of licensee also say that a licensee enters on the premises without any enticement, allurement, or inducement from the occupant to enter. Nevertheless, most jurisdictions treat invited social guests in residential settings as licensees. Public servants, such as fireman and policeman, as well as mailmen and delivery people, are generally considered licensees.

The standard of care of an occupant of property to a licensee is between the degrees of care owed to invitees and trespassers. Generally speaking, the land owner only has to guard against those conditions of which the land owner or occupant has actual knowledge and the licensee has no knowledge. Some jurisdictions state that the occupier need only warn unless failure to make safe would be gross negligence.

The general duty to a trespasser is to avoid injuring them by gross negligence. Gross negligence is defined differently in different jurisdictions, but ordinarily involves more than simple errors and omissions and requires conduct or lack of action approaching total lack of care or total indifference. The definitions of gross negligence are highly controversial and are constantly changing.
 

Things

The law of negligent entrustment is another area in which courts have specifically defined negligence under very limited circumstances. A dive shop operator who lends a vehicle or a spear gun, or a boat owner who lends a boat, may be found guilty of negligent entrustment if the borrower is incompetent, unfit, or reckless and the owner knew or had reason to know that the borrower was unfit. The law of negligent entrustment is fairly broad and covers nearly any dangerous instrumentality.

The injured person may allege that the operator or user of the equipment was negligent; or the plaintiff may allege that the owner of the equipment was negligent and that the user of the equipment was simply unfit. For example, a person injured in an accident may allege that an automobile owner knew about the driver's tendency to black out, but loaned the car to the driver anyway. The injured person may not claim that the driver was negligent, but can still claim that the owner should not have lent the car.

The lesson here is to know the people to whom you lend. Check the driving records and general backgrounds of employees who run errands. Check the certifications of people to whom you lend dive gear. Remember that a dangerous diver endangers those around him.
 

Extraneous laws

Occasionally, a statute or regulation will draw a bright a line, creating a boundary which defines ordinary care. These laws are generally written with safety in mind and are intended to protect people from injury. The courts, on a law by law basis, may or may not adopt these rules as absolute standards of conduct. If the courts adopt a law as a standard of conduct, then violation of the law is called negligence per se and results in liability unless the defendant has a legal excuse for violating the law.

Negligence per se does not flow from every law. For example, states define intoxication based on blood alcohol content. Some states allow blood alcohol content into evidence in civil lawsuits to create a presumption of negligence, but not negligence per se. Speed limits are treated similarly. Violation of the speed limit is generally presumptive evidence of negligence, but is not necessarily conclusive evidence of negligence, depending upon the state in which the offense occurred. At least that is the theory.

Most states also recognize evidence of one or more of these excuses to a violation of the law if a defendant claims that they apply to the case:

1. The statute was violated reasonably because the defendant was incapacitated;

2. The defendant did not know, nor should the defendant have known, that the defendant needed to comply with the law;

3. The defendant is unable to comply with the law, even after exercising reasonable diligence and care;

4. There was an emergency, not due to the defendant's conduct, which made it reasonable for the defendant to violate the law;

5. Compliance with the law would have involved a greater risk of harm to the defendant, the plaintiff, or others.

Unless you know the law, have a good reason for violating the law, and are willing to take the risk that a jury will, in hindsight, disagree with you, it is much better to spend your energy complying with the law.
 

Circumstances

The law also allows leeway to people who act under emergency circumstances that they did not create. Ordinarily, if the emergency arises suddenly and unexpectedly, requires immediate action without time for deliberation-- or appears to require immediate action -- and was not caused by the negligence of the person whose conduct is being judged, the jury will be instructed that they should take the emergency circumstances into account. While instructions vary substantially from place to place, the intent of the instruction is to inform jurors that an instinctive reaction is not negligent under emergency circumstances. The emergency doctrine, along with Good Samaritan laws and the rescuer concept, help to shield people who assist divers in trouble. The emergency doctrine is also applicable in vessel collision cases, if the accident happens fast enough.
 

RISK MANAGEMENT

The law of negligence imposes a duty to think before you act. The ordinary care standard imposes a social standard which is judged by members of the community who may or may not agree with your evaluation of your own conduct. Therefore, it is important to look at your acts and omissions from the stand point of others in the community who will be judging your conduct.

If you have negligence concerns about your shop, class, vessel, or dive, ask:

1. What would members of the community require me to do under these circumstances;

2. What would members of the community forbid me to do under these circumstances;

3. What would members of my profession/vocation/calling require of me under these circumstances;

4. What would members of my profession/vocation/calling counsel me to avoid under these circumstances;

5. What are the risks of my conduct, considering the probability of harm and the degree of injury or damage that would result if an accident occurred; and

6. Would ordinary people in the community believe that I am taking reasonable risks?

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This article is intended only as a generic introduction to legal concepts and is not intended to provide legal advice applicable to any particular situation, set of facts, or jurisdiction. Laws vary widely from jurisdiction to jurisdiction. For specific legal advice, please consult an attorney who is licensed to practice in your jurisdiction.
 

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Copyright 1999 Dana Timaeus