Law FAQ: What is negligence? What is a legal duty? (Part 2)

In yesterday’s blog post, I listed the 5 basic elements for a negligence claim: duty, breach, injury, causation, and proximate/legal cause.

Today’s post will focus on the first 2 elements which, for the most part, comprise the most interesting and difficult issues that arise in connection with negligence claims:  duty and breach.

As noted yesterday, negligence is commonly referred to as the “reasonable man” standard.  Stated differently, you would be considered negligent if you took an action that most average people would deem unreasonable under the circumstances.  Moreover, negligence can be predicated both on acts of commission (e.g. running a red light) and also acts of omission (e.g. a chiropractor failing to follow correct protocols).

Basically, the rules of negligence boil down to requiring people to follow society’s basic “rules of the road” for reasonable conduct.  For the most part, it’s commonsense-type stuff.  The law of negligence is about reasonableness and balance.  It does recognize, for example, that some injuries are simply unforeseeable and/or sometimes unavoidable.

Stated in legal terms, a court considers the issue of legal duty in the context of what is known as “reasonable foreseeability.”  This means that if your conduct would create a “reasonably foreseeable risk of injury” then you would have a societal duty either to avoid the conduct, or to take reasonable precautions to protect innocent bystanders from the risk.  The rule is really nothing different than The Golden Rule that churches, mothers and fathers teach their children every day.

For example, will you be held liable for negligence if the brakes on your truck suddenly and without warning fail, and you wind up in a wreck?  No, because the risk wasn’t foreseeable and you didn’t act unreasonably.  However, what if your brakes had been acting up previously, and you’d almost been a wreck just a few days prior, and yet kept on driving the truck instead of taking it to the shop for repairs?  In that case, you would be negligent because you failed to take reasonable steps to protect others against a known risk of harm.  In other words, you would be deemed to have breached your societal duty to those around you, and therefore you should rightfully be expected to make good on the injuries and damages you unilaterally imposed on an innocent person.

Note that the law of negligence is a far cry from the daily dose of nonsense you get from both ends of the spectrum.  Indeed, it is NOT the type of automatic, jackpot money grab that the ambulance-chasing TV lawyers seem to imply, and that the so-called tort reformers would likewise have you believe as part of selling their grossly exaggerated claim that “the sky is falling with lawsuits.”  To the contrary, the law does not provide for automatic liability whenever an injury occurs.  Likewise, it does NOT impose a duty to eliminate each and every one of life’s many risks.

The law of negligence is simply about the common sense “reasonable man” standard which is very much akin the Golden Rule — “Do unto others as you would have them do unto you.”

Stay tuned for more about the question of how the law determines the winner of a lawsuit when — as is often the case in real life situations — both parties are somewhat negligent.   This is referred to as the issue of comparative fault.  Stay tuned.