• David Omer

Negligence Basics

Negligence? On the road? You don't say!

Seen any bad drivers lately? Me, I saw about a dozen on the way in to the office this morning. People driving too slow, driving too fast, texting, swerving into whatever lane they please. It's frustrating at best, but it becomes scary to know that a stranger's carelessness could cost you your day, your health, or even your life.

But what can you do about it? Words like 'negligence,' 'carelessness' and 'neglect' get thrown around all the time these days, but what do they really mean from a legal standpoint? What is negligence, and at what point does a misdeed rise to the level of illegality?

Under the law, the idea of negligence is simultaneously simple and complicated. The simple part is that there are only four things to look for: (i) duty, (ii) breach, (iii) damages, and (iv) causation. The complicated part is that negligence revolves around 'reasonableness,' for which you're likely to get a different definition from every person you ask.

So what is negligence, anyway?

Let's start with the elements. The first thing you want to look for is duty; as in a legal duty to act (or refrain from acting) in a given way. Think about it this way; wherever you are, whatever you're doing, you have a legal duty to use the same standard of care that a "reasonably prudent" person would use under the same circumstances. As far as driving is concerned, it's generally accepted that a reasonably prudent person would be driving the speed limit, using blinkers, and staying off of their phone. That means that the law imposes a duty on you to drive the same way.

This brings us to the next element; breach. You're in breach when your conduct falls below that of the fictional reasonably prudent person. So if you're going 90 when the reasonably prudent person would be going 65, you're committing a breach. When you're subject to a duty and you breach that duty, you become negligent.

I know what you're thinking; you see negligent driving all the time! You never have to look far to find a driver who doesn't exactly put driving at the top of their priority list. Let me be clear here; you witness negligence anytime you see a duty and a breach of that duty. But here's the kicker; negligence isn't analyzed under the same strictures as, say, a traffic-related crime. If you're speeding, you can get pulled over and ticketed for it regardless of whether your speeding hurt someone. Negligence is different because it only becomes actionable when it causes harm. Look at it as a "no-harm, no-foul" type of situation. This leads nicely into the next two elements; damages and causation.

The term 'damages' refers to any injury, loss, or expense suffered or incurred by a party. Damages include special damages -- objective amounts like medical expenses and lost wages -- as well as general damages, which are subjective amounts reflecting things like pain and suffering, loss of consortium, etc.

'Causation' means that an actual and proximate link exists between the defendant's negligent conduct and the damages the plaintiff has suffered. This means that (i) the defendant's negligence actually did cause the damages, and (ii) it was reasonably foreseeable that the defendant's negligence would cause the same type and extent of damages. If you've got all four elements, then not only do you have negligence, but you have actionable negligence.

Can we have an example?

Certainly! Let's say Freddy is stopped at a red light when Laurel comes flying out of nowhere and slams into the back of Freddy's car. Freddy's car is totaled, and he suffers two broken ribs as a result of the impact. He racks up $20,000 in medical bills, loses out on $7,500 worth of wages, and his car has $2,500 in damage. Let's run the elements.

Because the reasonably prudent person would slow down to avoid slamming into someone at a red light, Laurel had the legal duty to do the same. He breached that duty when he failed to slow down and did, in fact, slam into Freddy at the light. Not only was Laurel's breach the actual cause of Freddy's damages, but it is reasonably foreseeable that this particular type of conduct would result in damages such as broken ribs, medical bills, lost wages, and property damage. Because Laurel was negligent, he is now indebted to Freddy in the full amount of Freddy's damages.

This sounds like it could get complicated.

The difficult part of the negligence analysis is its dependence on the idea of 'reasonableness.' You have to prove that a "reasonably prudent person" would act (or refrain from acting) in some given way, and you also have to prove that your damages were the "reasonably foreseeable" result of the defendant's breach. Reasonableness is tough because it's so subjective; everybody has a different idea of what's reasonable and what isn't.

Fortunately we have a good amount of North Carolina case law on the subject, and our North Carolina Pattern Jury Instructions provide additional guidance.

There are some pitfalls to the normal negligence analysis in North Carolina. Look for my forthcoming articles on things like contributory negligence, the no-contact rule, and sudden emergencies. If you have any questions, give me a call!

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