Negligence makes reference to the failure of an individual to apply reasonable care that leads to harm, injury, or loss to another party. In this regard, this comes about as a consequence of carelessness and disregard on the part of the individual that is found to be negligent. This has brought about a vital areas of law that is known as tort of negligence. In this regard, tort if negligence refers to a legal wrong that takes place when one part does not take the required and proper care in preventing what a reasonable individual would perceive as probable risk. This tort is considered as being the most prevalent. That is, in more than the last eighty years since its inception in the Donoghue v Stevenson, the tort of negligent has become the most pre-eminent tort in law. Under this law, negligence is considered to have occurred when someone carries out an action that a reasonable person would not. On the other hand, negligence also takes place when an individual fails to take action that a reasonable person would take. Consequently, both forms of negligence can result in a lawsuit being filed by the affected party.
Usually, there is a kind of contractual relationship whether expressed or implied existing between the parties involved in cases concerning negligence. This has for a long time been a significant requirement for a claim in negligence to succeed. However, due to the evolution of the civil law on negligence and its growth, this has made it possible for this law to deal with situations arising between parties despite the lack of a contractual relationship. In this sense, the law on negligence asserts that a party becomes liable when they negligently causes harm or discomfort to others. Therefore, in the event that the injured party is able to prove that the responsible party did not exercise care that a reasonable party would, or within the particular circumstances the law required the protection of the individual, the injured party will be entitled to compensation. A case is described illustrating this involving a number of incidents of negligence involving Rhode Island Hospital. The hospital was found to be negligent having operated on the wrong side of a patient’s brain in three incidents in a single year. The first incident took place when a third year student failed to undertake the required procedure of marking which side of the patient’s brain needed to be operated on. In the second incident involving the hospital, the doctor who had over 20 years’ experience in medicine did not fill which side of a patient’s brain had a blood clot and thus required surgery. This was detrimental as the affected patient ended up dying weeks after his surgery. In the final incident involving this hospital, the chief neurosurgeon and nurse after clarifying beforehand which side of the brain needed to be operated on, proceeded to operate on the wrong side of the brain.
Arguably, negligence implies that the party responsible has demonstrated a considerable amount of lack of diligence. On the other hand, there can be slight or less ordinary form of negligence. This has the meaning that the party responsible has to an extent demonstrated a lack of great diligence. However, gross negligence shows that the party responsible demonstrates a lack of even the slightest form of diligence in their actions to others. This can be illustrated by the case of Alexander Baez who is a former Mr. Mexico and also participated in the Mr. Universe competition becoming a runner up. Mr. Baez given the fact that he was into these kind of competition was therefore greatly concerned when it came to his looks. Consequently, he made the decision in 1999 to get pec implants. After the surgery, Mr. Baez awoke to implants which were in fact breast implants better referred to as C-cups.
The law on negligence asserts that there are a number of elements that encompass negligence claims. These are the factors that must be established for negligence to have occurred and are therefore fundamental when deciding cases involving negligence. Some of the most essential elements that tend to be considered include the following:
- Duty
Duty is perceived as an artificial conceptual barricade that a claimant is supposed to overcome before their action in filing a case of negligence is even considered. This concept encompasses adherence to a defined standard of reasonable care that one is supposed to have while performing acts that can be perceived as being potentially harmful to others. Considerably, the outcome of various negligence cases depend heavily on whether a defendant owed a duty to the given plaintiff. This notion of duty comes to be when the law asserts and recognizes the existing relationship between the two parties and it is this relationship that will obligate the defendant to thus act in a way that is certain towards the plaintiff. Therefore, it is clear that the duty element is a critical screening element when it comes to excluding cases that are not appropriate for negligence adjudication.
- Cause in Fact
In this element, it is required that a plaintiff must undertake to prove that a defendant’s actions and behavior resulted in their injury or loss. In other words, for a defendant to be held liable it is necessary to demonstrate that their particular actions or omissions were what caused the damage that a plaintiff sustained. It is essential to note that determining this cause in fact is a complicated process. This thus usually brings about the ‘but for’ causation concept. In this sense what follows is the notion of but for a defendant’s action or behavior, the plaintiff’s injury or loss would not have taken place. Therefore, cause in fact serves to provide the main negligence element that connects the defendant’s wrong to the plaintiff’s harm or loss.
- Proximate Cause
The element of proximate cause refers to the specific scope of a defendant’s responsibility in a case involving negligence. Therefore, a defendant is held responsible for only harms and loss that they could have foreseen through their actions of behavior. Proximate cause thus addresses the question of whether considering logic and fairness, policy and practicality if a defendant need to be held accountable for the harm of loss that has occurred to a plaintiff. In this sense, the element of proximate cause is advanced with the intent of limiting a tortfeasor’s responsibility to the outcomes of risk perceived fairly as arising from their wrong. Thus, proximate cause provides a wide fairness cauldron in which the various factual and legal issues tend to be assessed when deciding cases of negligence.
- Harm
Harm is the element that refers to the damage a plaintiff incurs as a result of the defendant’s breach of duty. This usually requires the defendant to offer some of compensation to the plaintiff for harm that has been improperly inflicted on them following their actions or behavior. In many instances, this compensation is usually in form of money. The law thus makes it clear that a plaintiff if found guilty of negligence is required to restore what the plaintiff has lost due to the proximate result of their wrong. However, determining what needs to be restored is not always an easy task. For instance, in cases of medical negligence that have resulted in the death of the affected party while the party’s family might sue for negligence it is not entirely possible for the plaintiff to restore what has been lost. In this regard, the negligent party cannot bring the affected back to life. Nonetheless, an agreement is reached and settlement in form of money can be rewarded to the family.
- Breach
This elements comes into play once it has been established that the defendant owed duty to the plaintiff. This is thus the misconduct or the defendant’s inopportune act or omission. This element of the tort of negligence implies a kind of preexistence of a standard of proper behavior in which one is supposed to avoid imposing risk that is undue to others people or their property. This is what has sparked the development of standard of care that governs the conduct of people and enterprises. The test for breach is perceived as being subjective and also at the same time objective. Despite this, breach as it entails duty is not limited to professionals alone, but is subjected to all members of society.
In conclusion, the tort of negligence has come from far having evolving from the need for a contractual relationship to be established for it to occur to a case of negligence taking place if when this relationship does not exist. In this cases of negligence, it is evident from the above discussion that negligence occurs when the party deemed to be responsible demonstrates a lack of diligence on their part. The five elements of tort of negligence including duty, cause of fact, proximate cause, harm, and breach as considered to the most essential in determining the occurrence of a negligent case.
