Negligence used to be a much broader term that referred to any sort of breach of the peace, but has evolved over time to become a separate entity from intentional torts as well as strict liability torts. The concept first appeared in regards to professional community members, such as doctors or blacksmiths, who possessed a certain duty to the community to provide honest service. If this duty was breached, the individual was guilty of negligence.
Early lawmakers were primarily considered with those wrongdoers who acted in an intentional way to disturb the peace, and were less concerned with those who failed to act. Because of this, negligence law developed relatively slowly and was based on injuries that were considered to be due to indirect causes. During the Industrial Revolution, negligence became a huge part of the legal system due to the introduction of machinery into daily life. There were many cases involving accidental injury that were attributed to negligence. Contact a negligence lawyer to acquire legal advice and assistance.
An unavoidable accident occurs when, despite all exercise of reasonable care, the defendant could not have foreseen or possibly avoided the resulting harm to the plaintiff. In order for an accident to be unavoidable, the situation must in no way be caused by or added to by the defendant.
Unless some evidence can be found that proves the defendant should have reasonably been aware that this accident would occur, he is not liable for the plaintiff's injuries. It must be proven that there was no wrongful intent on behalf of the defendant. This is only used in unique instances where the circumstances of the case prove that the plaintiff's injuries were absolutely unavoidable.
Elements of Cause of Action:
There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct which all people are expected to follow and there is a duty of the public to act in a certain way which reduces the risk of harm to others.
Negligence can only be claimed by an injured plaintiff whose interests have actually been interfered with, meaning that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant's actions and the plaintiff's injuries. There is a statute of limitations in negligence cases. However there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations.
Risk is a major factor when deciding negligence liability.
In order for a defendant to be held liable for negligence, the plaintiff must show that the defendant's actions were characterized by an unreasonable amount of risk to the plaintiff's safety. This sometimes arises in cases where an object was left lying around by the defendant and picked up by the plaintiff.
In these cases, negligence liability is determined by the amount of risk presented by the object. A shot gun, for example, presents unreasonable risk. In determining whether the amount of risk exhibited by the defendant is considered unreasonable, it is measured against what a reasonable person would have done. If a reasonable person in a similar situation would have recognized this risk as greater than most and taken action to prevent this risk, then it is considered gross negligence.
The Reasonable Person:
Negligence law is based on how a reasonable person in the defendant's situation would have acted. A person's age, physical, and mental characteristics are take into account. If a person has a disability for example, he will be held to the standard of how another person with this same disability would act.
The circumstances of a case of an important part in determining negligence. In the event of an emergency, the reasonable person standard is altered to include the way a reasonable person would act in that emergency situation. In negligence law it is held that a reasonable person should be able to determine the amount of risk associated with an activity, take necessary precautions, and be able to some degree to anticipate the conduct of others.
Application of the Standard:
In negligence cases, the standard of care refers to the amount of precaution and diligence taken by the individual who duty it is to provide care to the plaintiff. The general public is held to the reasonable person standard, while professionals are held to the professional standard of care.
This means that they must act with the same amount of prudence that a professional in the same area of work would exercise. This is especially important in cases of medical negligence in which medical professionals are held to a medical standard of care that provides the appropriate treatment guidelines for a patient with a specific illness or condition
Degrees of Care- Aggravated Negligence:
The amount of risk associated with a defendant's actions correlate to the amount of precautions that he should take to reduce harm to others. The degree of care taken corresponds to the degree of negligence that a defendant may be charged with. There are generally three degrees of negligence: slight negligence, gross negligence, and reckless negligence.
Slight negligence is found in cases where a defendant is required to exercise such a high degree of care, that even a slight breach of this care will result in liability. Gross negligence includes a more severe lack of care than ordinary negligence, but not that of blatantly disregarding the law. Reckless negligence is the willful disregard for the safety of others where the defendant's unreasonably risky actions will almost definitely result in injury.
Rules of Law:
Modern common law is built on a system of precedence. When a court makes a ruling, subsequent cases with the same or similar circumstances will be judged in the same way. If a court finds a defendant guilty of negligence, all other similar cases will also result in negligence.
However, because negligence law is based on the moral attitude of a society and the behavior of people, which is subject to change over time, precedents are not always effective in negligence law. Situations can greatly affect a person's actions, and situations are, for the most part, always different. Therefore, the rules of law can only be applied in negligence cases when the case is characteristic of a typical situation.
Violation of statute:
Some negligence cases are left to the discretion of the judge or jury, while other cases are based on violation of statute. Failure to abide by the code of conduct established by legislature may result in the defendant being liable for harm to the plaintiff caused by negligence.
In order for this to occur, the defendant must be found to have violated some specific statute, the plaintiff must be within the class of persons the statute is meant to protect, and the result of the defendant's actions must be the type of accident that the statute is designed to prevent.
It must be shown by the plaintiff that he did not contribute in any way to the defendant's violation of statute. However, some courts may still permit the plaintiff to collect damages even if the plaintiff himself is also guilty of some tortious act.
The term nuisance first emerged in the thirteenth century and referred to actions that took place on the land of the defendant, but interfered with the rights of the plaintiff. A writ of nuisance could be obtained to take action against the defendant. This action gave rise to the modern day private nuisance, and eventually public nuisance, which was any crime that was committed against the crown.
At this point in time the term was very widely used and vague in its meaning; any type of wrongdoing was often termed nuisance. In modern tort law there are different types of nuisances: public, private, and absolute nuisances. A private nuisance effects one individuals enjoyment of his land, while a public nuisance effects a larger amount of citizens, or the public in general. Absolute nuisances are nuisances for which the defendant is strictly liable.
In a private nuisance, a defendant engages in some activity that interferes with the plaintiff’s right to enjoy his property. A land owner is entitled to a certain level of comfort that is free from interference while on his private property. Private nuisance can come in the form of physical damage to the property or the disturbance of comfort.
Tort law distinguishes a public nuisance from a private one based on the amount of people that are effected; a private nuisance may only effect a small amount of people. A private land owner can bring action against another for private nuisance, as long as he can prove the defendant interfered with his ability to enjoy the land.
Substantial and Unreasonable Interference:
In order for a defendant’s interference to be considered a nuisance, it must be both substantial and unreasonable. A complaint by an overly sensitive plaintiff will not be considered a nuisance on the part of the defendant, because the offense must be something that would disturb the average, reasonable person. The interference must cause substantial damage to the plaintiff, and the interference with the plaintiff’s comfort must be greater than the benefits of the defendant’s conduct.
Because nuisance is a tort that is based on the reasonable person standard, it is very dependent on the individual circumstances of a situation. A nuisance per se is an act that is always considered to cause a nuisance, while a nuisance in fact depends entirely on the situation. A judge or jury will make the decision as to whether the defendant’s actions constitute a nuisance.
If it is found that a defendant created a nuisance, he will be responsible for providing relief. When the court issues an injunction, it requires the plaintiff to either start or stop doing a specific action. In a nuisance case, the injunction usually requires the defendant’s behavior to be put on a restriction, such as limiting the number of hours in which he can participate in the behavior, or it can be prohibited entirely.
In obtaining injunctive relief, the plaintiff may also request a temporary restraining order which will prohibit the defendant from engaging in the alleged nuisance until the courts have issue their ruling. The court may then issue a permanent injunction; if the defendant violates this injunction he will be subject to fines and possible imprisonment.
Factors of Importance:
The courts consider several factors when determining whether the defendant has committed a nuisance and whether the plaintiff is entitled to a remedy. The defendant’s actions must considerably interfere with the plaintiff’s enjoyment of property and violate their right to comfort. The courts will weigh the interests of both parties and consider whether the defendant has made an attempts to minimize the alleged nuisance, or if the defendant has the means to do so.
In order to be considered a nuisance, the defendant’s actions must be continuous over time and not an infrequent occurrence. The situation in which the tort was committed is taken into account, and may be dependent on characteristics of the area. If the defendant’s actions meet the requirements of a nuisance, then the courts will issue some sort of remedy for the situation to compensate the plaintiff.
“Absolute” Nuisance:Any intentional pollution or interference with real property rights or a trespass into private property is actionable. For a plaintiff to claim absolute nuisance, he must prove that the defendant’s actions were committed intentionally and not due to negligence. In an intentional tort, the actor is aware that the consequences are very likely to occur. Remedies for absolute nuisances include abatement and injunction as well as monetary damages
In a public nuisance, the defendant’s actions effect a large or indefinite number of people, such as the community as a whole. When plaintiffs are effected by a private or public nuisance, they have the right to seek relief for damages from the defendant. Sometimes monetary damages are awarded in nuisance cases, but more often, it is equitable damages. An injunction requires the defendant to permanently refrain from the nuisance activity, or limit it to a certain time of day or amount of hours. Sometimes money damages are offered to the plaintiff and the defendant is still permitted to engage in the activity.
A nuisance resulting from negligence refers to an interference with the property rights of a land owner by a defendant who was not exercising proper care. For example, hosting an excessively loud party during a time when the defendant should reasonably believe that the plaintiff would be sleeping is considered a nuisance. The defendant did not take proper care to ensure that his acts would not interfere with the comforts of others.
If the courts determine that the nuisance that exists is one involving hazordous activity towards others, then the defendant will be subject to strict liability. This differs from negligence because even if the defendant took all possible precaution to guard against harm, it is the nature of the defendant’s activities hold him strictly liable. If a defendant is storing hazardous chemicals on his property and, despite the utmost care, these chemicals somehow interfere with the plaintiff, he is liable for the damages caused, whether it be physical damage or interference to enjoyment.