When people of think of injury law, they can imagine a wide variety of catastrophic circumstances. Car accident, plane crash, electrical fire, accident on the shop floor of a manufacturing facility, medical malpractice – there are virtually limitless ways in which people become injured in our extraordinarily complex society. These injuries often give rise to litigation over who or what caused the accident, how badly the injury impacts the life of the victim, and how to value in that dollars and cents, the only true form of redress for such harm in a court of law.
What most people do not realize, however, is that the law treats these varied situations very similarly. That is because all of them are built around a foundation known as “negligence law.” Negligence is the backbone of “tort law,” which is the law of “civil wrongs” and is distinguished from laws applicable to contracts, criminal behavior, and administrative law (such as regulations from agencies like the Public Employment Relations Board or the Environmental Protection Agency). Understanding negligence is the key to understanding all tort law, even those areas of tort law noted for their sharp contrast with negligence (such as product defect and failure to warn, which are based on strict liability – the arch-nemesis of negligence).
Negligence has three basic elements, which have existed since the British common law from which we derived our Nation’s earliest laws. To prove the Defendant was negligent in any injury case, the Plaintiff must show:
- The Defendant owed the Plaintiff a legal duty to exercise care;
- The Defendant breached that duty; and
- The Defendant’s breach proximately or directly caused the Plaintiff harm.
(United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594; Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59.)
How, then, does the Plaintiff establish the first element? Well, that varies based on the type of case at issue. In many cases, the Plaintiff might establish negligence per se by showing that the Defendant violated a statute or regulation and that violation caused the harm. For example, if the Defendant runs a stop sign and strikes the Plaintiff, the Plaintiff can show (1) that the Vehicle Code sections requiring a stop at a stop sign created a legal duty of care to the other drivers; (2) that the Defendant breached that duty when he ran the sign; and (3) that the Plaintiff was hurt by the breach.
What about when the Defendant has not expressly violated a statute, such as the Vehicle Code violation described above. The Plaintiff can still proceed under California Civil Code section 1714, which provides as follows:
“Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.”
This statute creates a general duty for everyone to exercise “ordinary care or skill” in our daily activities. Thus, if I fail to trim my obviously dying tree and it one day collapses and crushes my neighbor’s home, I am likely guilty of negligence. The source of the duty would by Civil Code section 1714, which codifies the common law rule that I need to exercise ordinary care at all times. Since most reasonable and ordinary persons would trim or chop down a dying tree before it collapses, I will likely be responsible for any harm done by failing to do so.
The standards for what constitutes “ordinary care” and whether it has been breached are extremely ad hoc, meaning assessed on a case-by-case basis. Industry standards, custom and habit, and the feasibility of safer alternatives all play a role in determining whether the Defendant has breached the duty in any particular case.
Many industries have specialized negligence rules. For example, a “medical malpractice” case is simply a special form of negligence action brought against a doctor. The “ordinary care” standard is interpreted to mean the care and skill with which a reasonable, ordinary doctor would demonstrate. If a reasonable doctor would not have treated the patient the same way the Defendant did, the Defendant may be found guilty of medical malpractice. The same industry-specialization occurs in many professional negligence cases, such as legal malpractice and accounting malpractice.
Negligence literally forms the backbone of nearly all personal injury law, and the foregoing barely scratches the surface of the law surrounding it. As such, we will post new articles about different aspects of negligence law in the coming weeks. Please return regularly or subscribe to our blog to receive them as they are published.
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