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Torts • Negligence
TORT#045
Legal Definition
A defendant breaches their duty of care when their conduct falls below the level required by the applicable standard of care owed to the plaintiff, which can be established by using one of 3 theories:
1. Custom or Usage
2. Evidence that the defendant violated an applicable statute (i.e., negligence per se)
3. Res Ipsa Loquitur, which requires the plaintiff to show: (a) the accident causing their injury is a type that would not normally occur absent negligence; and (b) the negligence is attributable to the defendant as a result of their exclusive control of the circumstances.
1. Custom or Usage
2. Evidence that the defendant violated an applicable statute (i.e., negligence per se)
3. Res Ipsa Loquitur, which requires the plaintiff to show: (a) the accident causing their injury is a type that would not normally occur absent negligence; and (b) the negligence is attributable to the defendant as a result of their exclusive control of the circumstances.
Plain English Explanation
There are three ways to prove that someone did not act in accordance with the level of their duty of care.
The first is by comparing how the defendant acted against a standard model of common custom or common usage. Negligence is, after all, an act or omission that doesn't meet an expected standard — so if everyone acts the same as the defendant, then it's hard to single them out as acting wrong. In contrast, where you can show that others generally act in a way that the defendant should have acted, then you have grounds for breach of duty.
The second is negligence per se, which establishes a statutory level for duty of care.
The third is res ipsa loquitur, which is Latin for, "The Thing Speaks for Itself." In order to establish a breach of duty, you need to be able to point to someone and have evidence of how their actions fell below the duty of care they owed you. But what if you are unable to point to someone, or have no idea exactly what they did wrong that resulted in your harm? This is where Res Ipsa Loquitur comes in.
For example, imagine you go to the hospital for abdominal surgery. After the operation, you wake up in your hospital room with severe pain in your stomach. An X-Ray reveals that someone left a sponge inside of your abdomen. You have no idea who left the sponge in there, or how it specifically got there, but one thing is clear: it should not be there. In fact, the only way a sponge can get left inside of you is if someone was negligent. The law doesn't expect you to figure out specifically which doctor did it; rather, you can sue the hospital and let them figure it out.
The first is by comparing how the defendant acted against a standard model of common custom or common usage. Negligence is, after all, an act or omission that doesn't meet an expected standard — so if everyone acts the same as the defendant, then it's hard to single them out as acting wrong. In contrast, where you can show that others generally act in a way that the defendant should have acted, then you have grounds for breach of duty.
The second is negligence per se, which establishes a statutory level for duty of care.
The third is res ipsa loquitur, which is Latin for, "The Thing Speaks for Itself." In order to establish a breach of duty, you need to be able to point to someone and have evidence of how their actions fell below the duty of care they owed you. But what if you are unable to point to someone, or have no idea exactly what they did wrong that resulted in your harm? This is where Res Ipsa Loquitur comes in.
For example, imagine you go to the hospital for abdominal surgery. After the operation, you wake up in your hospital room with severe pain in your stomach. An X-Ray reveals that someone left a sponge inside of your abdomen. You have no idea who left the sponge in there, or how it specifically got there, but one thing is clear: it should not be there. In fact, the only way a sponge can get left inside of you is if someone was negligent. The law doesn't expect you to figure out specifically which doctor did it; rather, you can sue the hospital and let them figure it out.
Related Concepts
In assessing negligence per se, when is breach excused?
In assessing negligence, what duty of care is owed by bailees?
In assessing negligence, what duty of care is owed by children?
In assessing negligence, what duty of care is owed by common carriers and innkeepers?
In assessing negligence, what duty of care is owed by landowners to discovered or anticipated trespassers?
In assessing negligence, what duty of care is owed by landowners to invitees?
In assessing negligence, what duty of care is owed by landowners to lessees?
In assessing negligence, what duty of care is owed by landowners to licensees?
In assessing negligence, what duty of care is owed by landowners to those off premises?
In assessing negligence, what duty of care is owed by landowners to undiscovered trespassers?
In assessing negligence, what duty of care is owed by professionals?
In assessing negligence, what duty of care is owed during emergencies?
In assessing negligence, what is actual causation and what three methods may be used to determine it?
In assessing negligence, what is a proximate cause?
In assessing negligence, what is negligence per se?
In assessing negligence, what is the but for test?
In assessing negligence, when do you determine whether a cause was a substantial factor in causing the injury?
In assessing negligence, when do you determine whether there are alternative causes to the injury, and what is the result?
In assessing negligence, when is a duty of care owed?
In assessing negligence, when is there a duty to act?
In assessing negligence, who owes a duty and what is the general standard of care owed?
In assessing proximate causation, what is the relationship between foreseeability, direct causation, and indirect causation?
What damages are available for negligence actions?
What is an attractive nuisance, and how is a claim established?
What is negligence?
When is a lessor liable for dangerous defects on their property?
