OVERVIEW OF NEGLIGENCE
FOR THE LEGAL INVESTIGATOR
By Ralph D. Thomas

Negligence is the largest area of tort litigation found today. The basic concept in negligence is that the defendant acted with less care than is expected from a reasonable person. This reasonable person is an imaginary person used as a model in the negligence concept. Neg gence does not assume that the defendant's action that caused this liability imposed upon him was some thing he did on purpose. How ever, this general legal principle implies that the defendant failed to act or provide due care. Negligence then, is the unintentional failure of a defendant to act as a reasonable man would causing harm to the plaintiff.

There is not another area within the legal/investigative science that needs to be understood more than in the area of negligence. The legal investigator needs a basic understanding of this legal principle to investigate such a case. The volume of case assignments is high, more so than in any other area. This chapter will deal with those concepts most needed when it comes to the investigation of a negligence case.

UNDERSTANDING TORT LAW: A tort is a civil wrong resulting from a violation of a legal right not created by contract for which monetary redress is provided. This may be (a) an act or (b) an omission. More formally, a tort may be defined as a wrongful act or omission arising in the course of social re ships other than contracts which violates a person's legally protected rights for which the law provides a remedy in the form of an action for damages.

There are two basic classifications of torts: (a) negligence which is the result of an unintentional act (b) intentional acts or omissions which results in a breach of someone's rights. There is a third group in this area that should be explained. It is referred to as strict liability.

UNDERSTANDING DIFFERENT DIVISIONS AND REALATING TOPICS: This description and any description of various legal principles as they relate to legal investigation found in this manual covers various points in general terms. Some states will apply one principle and another state another. It is up to the investigator to learn and understand which principles apply.

UNDERSTANDING NEGLIGENCE: Negligence is the failure to exercise that degree of which the law requires to protect others from unreasonable risk or harm. It will measure a person's act or omission against that of "a reasonably prudent man". This measurement is against an unreal person who is used as a standard of conduct. It denotes the failure to act as a reasonably prudent man would have acted under similar circum stances.

DEGREE OF CARE: All that needs to be proven is that the defendant did not act as a reasonable prudent person would under like circum stances. The law of our land has imposed certain degrees of care that become issues under certain conditions. Some of these circumstances can come out in the actual investigation of the facts.

ABSOLUTE LIABILITY: Under some conditions, no neg gence need be shown because the defendant was involved in activity that imposes strict or absolute liability upon him. Under conditions which are dangerous in nature strict liability is generally imposed. To apply strict liability, one needs to consider the activity the defendant is involved in. The strict liability principle can be compared to the accidental shooting in an armed robbery. Under such a condition, the criminal can be charged with murder and the mere fact that the shooting was an accident is immaterial. Under certain conditions, you can see absolute liability can be imposed even in the absence of neg gence.

In most cases, anyone who possesses, stores, maintains, or transports a dangerous instrumentality is absolutely or strictly liable for any injury or damage caused by the instrumentality, regardless of the presence or absence of due care.

CONTRIBUTORY OR COMPARATIVE NEGLIGENCE: see above

LAST CLEAR CHANCE: In this principle you might show that the plaintiff had the last clear chance to avoid the accident. In such a case, the defendant's liability could be diminished or omitted all together.

ASSUMPTION OF RISK: Under certain conditions it could be held that the plaintiff assumed the risk involved. In such a case, there would be no liability. What this principle means is that, in advance, the plaintiff gave his consent to assume certain risks. What this really does is transfer certain duties from the defendant to the plaintiff. In other words, the plaintiff is then responsible for himself. A good example of this would be owners of certain sinkholes in Florida used by scuba divers. The divers are almost always required to sign a statement that they are assuming all risks before they dive. However, the as tion of risks does not have to be in writing and can be implied.

PROXIMATE CAUSE: This has to do with the relationship between the failed duty of the defendant and the damage suffered by the plaintiff. There are thousands of cases each year where the plaintiff claims damages that were not the result of the actions or accident. In such a case, the defendant needs to show that certain of the plaintiff's damages were not the proximate cause of the accident.

STATUTE OF LIMITATIONS: This has to do with the time limitation imposed upon the plaintiff to seek damages from the defendant. It often can become an issue in any negligence case. Dates and times are important. You will want to know the time limitations in your area.

UNDERSTANDING THE LAST CLEAR CHANCE DOCTRINE

The law imposes a duty of "last clear chance" or requires each and every party to use due care for the safety of themselves and others. This is related to comparative and contributory neg gence. Under this doctrine, any party will have a legal duty to avoid an accident and failure to do so will create a liability. Such a doctrine is set up to avoid a situation where (for example) a person saw the opportunity for an accident to take place and he or she let it happen so damages could be collected.

UNDERSTANDING THE DOCTRINE OF RES IPSA LO QUTUR

Negligence can be proven with circumstantial evidence and one type is res ipsa loquitur. This is a latin term which means, "the thing (act) speaks for itself. There must be four elements present to prove or show negligence with this doctrine. They are:

a) The accident could not have ordinarily occurred without someone being negligent.

b) The accident is caused by an instrumentality within the exclusive control of the defendant.

c) The injured party (plaintiff) did not contribute to the negligence.d) The evidence as to the explanation of the accident is more available to the defendant than to the plaintiff.

UNDERSTANDING DAMAGES

Damages have to have resulted in order for the plaintiff to collect anything from the defendant. In relationship to legal principles, there are two types of damages:

(a) SPECIAL DAMAGES: These damages are direct dam ages. For example, in an auto accident they might be: damaged clothing, hospital bills, doctor's office bills, bills for drugs, repair of auto, rental of another vehicle, etc.

(b) PUNITIVE DAMAGES: These damages are not direct but have more to do with pain and suffering. Harder to measure, they can often times be higher than special damages.Punitive damages are more of a punishment of the defendant.

UNDERSTANDING SUBROGATION

As stated a person can be held liable for his or her acts or omissions and be charged with negligence. If the injured party chooses to recover from his own insurance company in part or in whole, then the insurance company in effect purchases the right to seek damages from the defendant. This is commonly referred to as subrogation. From an investigator's point of view, the insurance company will often times order an assets investigation before seeking legal action to determine if the third party has any attachable assets for subrogation.

Since negligence depends upon certain degrees of care imposed upon the tortfeasor, the degree of care required can and often does depend upon the relationship between the two parties involved. In other words, different yardsticks of measurement can be used against the tortfeasor depending upon the re ship between the two parties. Facts concerning the relationship between parties involved need to be established to determine the "yardstick of measurement". Such facts will establish the relationship into one of three classifications.

(A. invitee B. licensee C. trespasser).

INVITEE: An invitee is either a public invitee or a business visitor. A public invitee is one whom enters upon the defendant's land being a member of the general population. He enters upon the defendant's land as the land is opened to the general public. A business visitor is one who enters upon the land for some kind of direct or indirect business dealing with the owner. An invitee is given the greatest degree of protection by the courts as far an negligence is concerned. Moreover, a business visitor is given the greatest degree of protection within the invitee concept. In other words, the degree of care might be different when a person is given a ride in a vehicle if he compensated the owner for the ride than if he was given a ride for free. Such hair-line cases come up daily in the field of negligence.

LICENSEE: A licensee is a person whom enters upon property with an implied or express consent. An example of a licensee would be a social quest. Under most circumstances a licensee is expected to accept the property as he finds it and to look out for his own welfare. Under such circumstances, the knowledge of any danger known by the licensee will preclude the licensee from any type of recovery. However, the owner will be required to inform and give warning to the licensee of any danger. Thus, the defendant would have a legal duty to inform the licensee of any dangers.

TRESPASSER: A trespasser is one who enters upon property without the implied or express consent of the owner. The owner or possessor of the land can not be held liable for any harm done by a trespasser and owes no duty to act as the reasonably prudent man would.

PROOF OF NEGLIGENCE

The burden of proof of negligence is on the plaintiff. In order for the plaintiff to obtain any type of recovery from the de dant, he must establish and prove four basic issues. They are:

1) A legal duty exists to conform to a reasonable standard of conduct. In other words, there was a legal duty to act or not to act on the part or the defendant.

2) The defendant failed to perform the standard of conduct, and there was a breach of the legal duty.

3) The defendant's failure to act in the standard resulted in an injury to the plaintiff. This is often referred to as proximate cause.

4) Actual damages resulted from the incident.

KINDS OF NEGLIGENCE

GROSS NEGLIGENCE: Gross negligence is a term often used in civil litigation today. It refers to the intentional failure to perform the duty expected by a reasonable man.

CONTRIBUTORY NEGLIGENCE: This principle has to do with the plaintiff being negligent to some degree also. In those states where contributory negligence is in effect, such a situ ation would rule or bar the plaintiff from any action brought against the defendant. In effect, this is an all or nothing theory.

COMPARATIVE NEGLIGENCE: This principle will meas ure the degree of negligence of both the plaintiff and defendant. A percentage is assigned. In such a case, the defendant would only then be held responsible for that percentage. In other words, if party A, the plaintiff, was found to contribute 20% negligence to the act, and the defendant 80% to the act, the defendant would only have to pay 80% of the total damages. In effect, this principle eliminates the all or nothing theory.

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