Tuesday, October 30, 2007

Negligence is a legal concept usually used to achieve compensation for accidents and injuries. Negligence is a type of tort or delict and a civil wrong, but can also be used in criminal law. Negligence means conduct that is culpable because it misses the legal standard required of a reasonable person in protecting individuals against foreseeably risky, harmful acts of other members of society. Negligent behavior towards others gives them rights to be compensated for the harm to their body, property, mental well-being, financial status, or relationships. Negligence is used in comparison to acts or omissions which are intentional or willful. The law of negligence at common law is one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of this discussion.

Elements of negligence claims

Main article: Duty of care Breach of duty

Main article: Causation (law) Factual causation
Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo J, "liability in an indeterminate amount for an indeterminate time to an indeterminate class." The wife of a policeman, Mrs Jaensch suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.

Legal causation or remoteness
Even though there is breach of duty, the negligence suits will not be successful unless there is provable injury. The plaintiff/claimant must have suffered loss or damage flowing naturally from the breach of the duty of care if damages are to be awarded. The damage may be physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss of earnings consequent on a personal injury), reputational (e.g. in a defamation case), or in relationships where a family may have lost a wage earner through a negligent act. In English law, at least, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.
Emotional distress has been recognized as compensable in the case of negligence. The state courts of California allowed recovery for emotional distress alone — even in the absence of any physical injury.

In civil law systems (as opposed to Common Law) such those found in continental Europe, Quebec, and Puerto Rico, negligence is classified as a form of extra-contractual responsibility, sometimes called a quasi-delict in distinction to the more willful delicts within the conceptual framework of the law of obligations. There are some differences in the comparable laws of negligence in civil law jurisdictions, but the basic principles of delict and quasi-delict are similar albeit established by courts applying the inquisitorial system rather than the adversarial system. So investigative judges or magistrates will interview all parties and witnesses, and then prepare reports to be submitted to a panel of judges for final decision. That decision may also be appealed several levels through a judicial hierarchy.

Procedures and law in civil law jurisdictions

Main article: DamagesNegligenceNegligence See also