Negligence

Webster’s defines negligence as habitual failure to do the required things or carelessness in manner or appearance. Business law authors Jane Mallor et al. define negligence as “conduct that falls below the level necessary to protect others against unreasonable risks of harm.” In the United States, negligence law grew out of the American Industrial Revolution, when railroads, machinery, and new technology increased injuries to workers. Initially, courts generally ruled against plaintiffs, under the belief that there should be no tort liability to employers. Over time, negligence liability shifted, becoming more pro-plaintiff and leading to calls for tort reform. Lawsuits and insurance against liability are a major cost of doing business in the United States. Many would-be entrepreneurs find that the cost of protecting against liability is prohibitive and discourages business initiative. Critical to the definition of negligence is what constitutes failure. The most common definition of failure is not using reasonable care—doing something that a reasonably prudent person would not do or failing to do something that a reasonably prudent person would do under like circumstances or a departure from what an ordinary reasonable member of a community would do in the same community. Mallor et al. write that to prove negligence, a plaintiff must demonstrate a breach of duty, actual injury suffered by the plaintiff, and actual and proximate causation between the breach and the injury. In cases involving allegedly defective, unreasonably dangerous products, the manufacturer may be liable even though it exercised all reasonable care in the design, manufacture, and sale of the product in question. Manufacturers are not required to produce a product that is “accident-proof.” They are required to make a product that is free from defective and unreasonably dangerous conditions. The two traditional defenses manufacturers take in negligence cases are contributory negligence and assumption of risk. Contributory negligence is failure by the user to take reasonable care for his or her safety. Assumption of risk is the legal argument that the user voluntarily exposed him- or herself to a known danger. More recently, negligence defense has included comparative fault and comparative negligence. Comparative fault involves plaintiffs’ and defendants’ overall fault rather than either’s negligence alone. Comparative negligence argues that damages should be apportioned based on each party’s relative fault. Often, settlements of negligence cases are based on comparative negligence.