Negligence

Negligence (Lat. negligentia)^[1] is a failure to exercise appropriate care expected to be exercised in similar circumstances.^[2]

For the related concept in caregiving entirely outside of a legal context, see neglect.

Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a negligent act. The concept of negligence is linked to the obligation of individuals to exercise reasonable care in their actions and to consider foreseeable harm that their conduct might cause to other people or property.^[3] The elements of a negligence claim include the duty to act or refrain from action, breach of that duty, actual and proximate cause of harm, and damages. Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss.^[4]

159 F.2d 169 (2d. Cir. 1947)

United States v. Carroll Towing Co.

– quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one's car.

Special damages

– these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.

General damages

– Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant's conduct was more than ordinary negligence (i.e., wanton and willful or reckless).

Punitive damages

Aggravated damages – In contrast to exemplary damages, compensation are given to the plaintiff when the harm is aggravated by the defendant's conduct. For example, the manner of this wrongful act increased the injury by subjecting the plaintiff to humiliation, insult.

[43]

Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person".^[41] The test is self-explanatory: would a reasonable person (as determined by a judge or jury), under the given circumstances, have done what the defendant did to cause the injury in question; or, in other words, would a reasonable person, acting reasonably, have engaged in similar conduct when compared to the one whose actions caused the injury in question? Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.

Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

There are also two other general principles relating to damages. Firstly, the award of damages should take place in the form of a single lump sum payment. Therefore, a defendant should not be required to make periodic payments (however some statutes give exceptions for this). Secondly, the Court is not concerned with how the plaintiff uses the award of damages. For example, if a plaintiff is awarded $100,000 for physical harm, the plaintiff is not required to spend this money on medical bills to restore them to their original position – they can spend this money any way they want.^[42]

Worldwide[edit]

Civil law[edit]

In the Swiss Criminal Code, the term "négligence" is used to denote an omission, akin to the English term "negligence." However, unlike "criminal negligence", it describes situations where the perpetrator acts without being aware of the potential consequences of their actions or disregards these consequences. Similarly, under the Turkish Penal Code No. 5237, which took effect on June 1, 2005, "criminal negligence" (Turkish: İhmali suç) refers to a person’s failure to act when required by law,^[44] while "negligence" (Turkish: Taksir) is defined as the occurrence of a legally foreseen consequence due to a lack of necessary care.

The French penal code, as a rule, requires a person to have acted with mens rea, for an act to be punishable.^[45] Comparably, the Italian Penal Code [it], enacted on October 19, 1930, specifies in Article 42 that a person can only be punished for a crime if it was committed with intent. However, Article 43 provides exceptions for crimes arising from negligence or exceeding intentionality. These negligent crimes occur despite the defendant's foresight^[c] and are the result of negligence, carelessness, lack of experience, or non-compliance with laws, regulations, orders, or disciplinary rules.^[46] Consistent with other civil law systems, Turkish Criminal Law also treats criminal responsibility for acts committed negligently as an exception, confined to those acts explicitly stated in the law.^[47] Article 23 of the Turkish Penal Code further asserts that for crimes that are aggravated by their consequences to be attributed to the perpetrator, the base crime must be committed with intent. Furthermore, concerning the aggravated or unintended consequences, the perpetrator must have acted with at least a minimal level of negligence, whether advertently or inadvertently.^[48]

, ed. (1911). "Negligence" . Encyclopædia Britannica. Vol. 19 (11th ed.). Cambridge University Press. pp. 342–343. — Britannica 1911's account of negligence: an interesting historical read, preceding the era of Buick Motor and Donoghue v. Stevenson.