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Negligence can be either (1) criminal or (2) civil in nature.

(1) In the realm of criminal common law, criminal negligence is a legal term of art for a state of mind which is careless, inattentive, neglectful, wilfully blind, or reckless; it is the mens rea part of a crime which, if occuring simulaneously with the actus reus, gives rise to criminal liability. Some distinguish recklessness from negligence; recklessness is a 'malfeasance' that increases the danger of an act occuring; whereas criminal negligence is a misfeasance or nonfeasance, merely allowing otherwise avoidable dangers to manifest. This is an example of the difference between a general intent crime and a specific intent crime with recklessness being more specific than criminal negligence. In some cases this 'nonfeasance' can rise to the level of wilful blindness where the individual intentionally avoid confronting a situation that no reasonable person[?] woould ever allow to occur. Gross criminal negligence is behavior which involves a "wanton disregard for human life". Of course, in all these cases if the actus reus or bad act never occurs then there is no crime as both elements are necessary under the criminal common law to sustain a guilty conviction.

Usually the punishment for criminal negligence, criminal recklessness, criminal endangerment, wilful blindness and other related crimes is imprisonment, unless the criminal is insane (and then in some cases the sentence is indeterminate). Examples of criminally negligent crimes are criminally negligent homicide and negligent endangerment of a child[?].

See also : culpability[?]

(2) Under civil common law, negligence is an ingredient of many non-intentional torts or wrongs that one individual suffers because of the nonfeasance, misfeasance or malfeasance of another. As opposed to the common law tradition of most Anglo-American jurisdictions in civil law legal systems such as continental Europe, Quebec and Puerto Rico, negligence is classified as a form of extra-contractual responsibility called a quasi-delict (in distinction to the more wilful delicts) within the conceptual framework of the Law of Obligations. The rules and elements are not the same as those set forth below under the Anglo-American common law tradition.

A lawsuit grounded in a claim of negligence might be brought, for example, by someone injured in an auto accident against another driver who he felt caused the accident by being reckless or irresponsible.

Note: unless otherwise stated, this rest of this section refers to negligence under common law (not criminal negligence) in the common law as practiced in most of the jurisdictions of the United States.

Under law, negligence is usually defined in the context of jury instructions wherein a judge, in language he finds fitting, tells the jury that a party is to be considered negligent if he or she failed to exercise the level of care that a reasonable person, possessed of the same knowledge, would have exercised under the same circumstances. In most jurisdictions, it is necessary to show first that a person had a duty to exercise care in a given situation, and that he breached that duty.

In order to prove negligence, it is not necessary to prove harm, but in order for a cause of action to rest in tort, harm must be proven. Hence, it would be meaningless to sue someone for negligence if no harm resulted. Conversely, it is not enough that a harm was done. In order for the harm to be compensible in a negligence lawsuit, the defendant must be shown to have been negligent, and it must be demonstrated that his negligence was the proximate cause of the harm felt by the plaintiff.

The law holds that any reasonable person would, if able, follow the law. Consequently, as a matter of law, a person may be declared by a court liable as a matter of law ("negligence per se") if it is proven that he or she broke the law. For example, someone injuring another in an auto accident may be found negligent per se in a civil suit arising from the accident if he was convicted in criminal court of driving while intoxicated at the time of the accident.

It is often observed by practitioners in tort law that a prospective plaintiff who has a poor understanding of the foregoing principles will desire to see a significant monetary penalty applied as a result of the outrageousness of a defendant's act. He may feel that he "deserves" an award all out of proportion to his actual misfortune, because of the severe nature of the defendant's carelessness. This is a mistaken view of the authority of the law. Damages are awarded in proportion to the scope of the harm done, not the severety of the negligence. "But he was so careless, he could have killed me!" falls on deaf ears in American courts. Still, some negligent acts are recognized as a matter of law to be so egregious as to merit financial penalty over and above actual damages, in order to reform the conduct of a malicious or callously indifferent defendant, and, by example, others similarly disposed. This is the purpose of punitive damages. Such acts are rare indeed, well defined in the law of applicable jurisdictions, and limited to the exact conditions of the law under which they may be awarded.

Only when the severity of negligence rises to an extreme level (and then, only when harm results therefrom) might it meet the standards required under laws providing for punitive damages.

Components of a negligence cause of action

A negligence lawsuit involves many components which need to be considered before the success of the case can be determined. Proving negligence is far more complicated than it may seem.

When considering a negligence cause of action there are four primary elements which need to be viewed and covered thoroughly: (1)duty, (2) breach of duty, (3) causation, and (4) damages.

(1) The duty element is the legal requirement that the person being sued for negligence must adhere to a standard of conduct in protecting others from unreasonable risk of harm.

It really is the legal obligation we have in our relationships with others. Different duties apply to different people.

  • A parent has a duty to care for her children.
  • A landlord has a duty to keep a residence habitable for her tenants.
  • Each duty is applicable to the pertinent responsibility at hand.
  • Professionals are held to a higher standard of care than the average person in society. These people take oaths in their professions and need to maintain that level of duty when they perform their professional activities.

(2) Breaching that duty is the second element to a negligence lawsuit. The question to be asked is: Would a reasonable person in a similar situation have done the same thing as the person being sued? To come to that conclusion both objective and subjective standards need to be considered.

  • The objective standard of breach of duty only considers a hypothetical person and what her or his reasonable behavior might be.
  • The subjective standard considers the actual person being sued and if she or he thinks they acted reasonably in the matter at hand.

(3) The causation of negligence is the third critical element of the lawsuit. Both actual cause and proximate cause are considered. Actual cause asks the question of whether the person being sued, the defendant, was the actual cause of injuries sustained by the person initiating the lawsuit, the plaintiff. Proximate cause looks at the issue of foreseeability. When considering the event that has happened, it is asked whether or not the injuries sustained were foreseeable or too remotely connected to the incident to even consider.

(4) The final element of a negligence lawsuit is the damages being sought. Damages are what the plaintiff is seeking in recovering for the incident resulting from the negligent act.

  • Compensatory damages are designed to compensate the plaintiff for actual costs incurred. Of those, there are general and special damages.
  • General damages are those like monetary compensation for the injury sustained.
  • Special damages involve extra items such as material possessions loss from the negligent act.
  • Nominal damages can also be awarded when negligence can be proven but there is not a quantifiable loss as a result of it.
  • Punitive damages are those with the intent to punish the defendant. The hope is that awarding punitive damages will deter similar actions in the future both by the defendant and others similarly situated.

While most lawsuits are settled when a negligence lawsuit goes to trial, the judge will determine what the defendant's duty was to the plaintiff as a matter of law using the standard of reasonableness. If it is questionable what a reasonable person[?] would do, a jury picked by the adversaries (plaintiff and defendant) will consider the facts and render a decision. Sometimes the trier of fact[?] will be the judge -- especially in English and other courts in Commonwealth countries outside the United States as a jury trial is not guaranteed in all other countries like it is in the United States. In civil law jurisdictions the procedure is more akin to an investigation with investigative judges who interview all parties and witnesses and then prepare reports to be submitted to a panel of judges for final decision which may be appealed several levels through a judicial hierarchy.

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