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Thou shall not be negligent
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Of the three types of torts, intentional, negligent and strict liability, the superstar of the group is negligence. Negligence can be found wherever there are human beings who don’t do what they are suppose to do, or do something they aren’t suppose to do.
This is the “you should have” area of tort. You should have known the floor was slippery after mopping it. You should have shoveled the sidewalk before the snow turned to ice and your neighbor slipped, fell and broke his leg. You should have made sure the jet’s engines were working properly before the plane took off. You should have made sure all the sponges were removed from the patient before ending the operation.
Ya shoulda
Ya shoulda
Ya shoulda
This would be the place where all good intentions come to rot, except, there is no intention in Negligence. Nobody is trying to hurt anybody. But somebody did get hurt and it was somebody else’s fault.
Of course hindsight is 20-20 and we can all look back at mistakes and accidents and find a “Ya shoulda” somewhere in there. Not all of them are negligence. But where do you draw the line between “just one of those things,” and negligent behavior?
Enter the proverbial “reasonable person.” For an act--or omission--to be negligent, it has to fail the reasonable person test.
“Reasonable” is a slippery word to define. Fair, proper, just, or moderate are used to explain it. But those words just beg the question and we are left to ask, “Well, what is fair or proper?” One person’s idea of fair is another person’s idea of unfair. Perhaps the best fit is “suitable under the circumstances.”
Let’s go back to the shoveled sidewalk situation: Joe is a good neighbor. Joe shovels his sidewalk and makes sure it is clean and safe to walk on. But in the middle of the night, while Joe is sound asleep in his comfy bed, an unexpected rain falls and is followed by a drop in temperature. The layer of water on the sidewalk freezes. Unbeknown to Joe, at 5 a.m. Roger is walking home after a very good and long date, slips on Joe’s icy sidewalk and breaks his leg.
Joe would be held to the reasonable person standard: what would an ordinary prudent person do under the circumstances? Is it reasonable for Joe to set his alarm to ring every half hour, to go outside on a winter’s night, and check the sidewalk? And since he had no way of foreseeing that Roger would be walking on it at 5 a.m., a reasonable person would not find him negligent for Roger’s injury.
The line is drawn at the point where, all circumstances taken into account, the person at fault had acted with ordinary prudence to avoid foreseeable injury.
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