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WHAT DOES IT MEAN TO BE NEGLIGENT? WHAT IS NEGLIGENCE? NEGLIGENCE is a cause of action that a plaintiff may assert in a civil tort case against a defendant. In order to meet a prima facie (on its face) case for NEGLIGENCE a plaintiff must prove four (4) elements: • That there was a DUTY on the part of the defendant to conform to a certain standard of conduct. • That that defendant BREACHED THAT DUTY • The breach of duty was, not only the actual cause, but the proximate cause of injury • There are damages WHAT IS THE STANDARD OF CARE The standard of care that is used in NEGLIGENCE cases is that of the REASONABLY PRUDENT PERSON. It is an objective view. In other words the question is NOT whether the defendant thought he/she was acting reasonably BUT whether an ordinary person on the street would have deemed that reasonable. The standard of care, for NEGLIGENCE actions, IS NOT concerned with mental deficiencies. According to tort law incompetence is not an excuse. An individual with an IQ well below average is still held to the standard of the reasonably prudent person for a normal IQ. Physical deficiencies take on a different standard though. Physical attributes and deficiencies are measured by the reasonably prudent person with that condition. Someone who is blind will be measured against the reasonably prudent blind person. A person who is a master rifleman will be measured against the reasonably prudent person with the same skills, eyesight, etc. as a master rifleman. There are other standards of care that are frequently used in NEGLIGENCE actions. These include children, common carriers (innkeepers, airlines, etc.), and professionals. WHAT IS THE DIFFERENCE BETWEEN ACTUAL AND PROXIMATE CAUSE? In a NEGLIGENCE action the plaintiff should find that finding (1) duty; (2) breach of duty; and (3) damages are straightforward. The question that remains is: what is the difference between actual and proximate cause? In a NEGLIGENCE action the plaintiff must prove that the defendant was BOTH the actual and proximate cause of the injury. The definition of ACTUAL CAUSE is that "if not for the action by defendant the injury would not have occurred." It is easier to think of this as the "But for" test. "But for Dana leaving her skateboard on the steps Peter would not have slipped on it and broken his leg." Here the leaving of the skateboard on the steps was the actual cause of Peter's injury. Not only does the NEGLIGENT actions by the defendant need to meet the "but for" test for actual cause but it must also be the PROXIMATE CAUSE, also known as legal causation. In order for the proximate cause prong to be met the defendant's actions must have been reasonably foreseeable. Courts are reluctant to find a defendant guilty of NEGLIGENCE when his actions, even though they were the actual cause, were interrupted by superseding, unforeseeable actions. For example, if Dana did not properly inspect her vehicle on a timely basis and failed to notice the brakes were worn she would be negligent if she hit another vehicle because of the faulty brakes. However, if a bolt of lightning caused Dana's car to accelerate into another vehicle she would not be found negligent. This is because, even though, she was negligent in maintaining the brakes the lightning bolt was an unforeseeable intervening cause. If a Plaintiff has met the four (4) elements of a prima facie case: (1) duty; (2) breach of duty; (3) proximate and actual causation; & (4) damages then a suit in NEGLIGENCE may be successful.

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