Proving Negligence

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What is negligence? Negligence is defined as an omission or careless act that causes harm and for which the law entitles the injured party to compensation. Some of the examples of negligence include:

  • Serving alcohol to an already intoxicated person who subsequently harms another person due to their increased inebriation
  • Careless driving by a delivery person that causes injuries to another
  • Failure to ensure that an employee gets home from a company party that served alcohol
  • Offering negligent professional advice such as given by a lawyer, accountant, doctor, architect or engineer

How to Prove Negligence

The burden of proof regarding negligence involves demonstrating lack of duty of care, standard of care and causation. More specifically, there is a standard of proof which is a measure of the degree that the aforementioned three facets have to be proven. Each facet requires proof as follows:

  • Duty of care – It has to be reasonably foreseeable that the defendant’s conduct could have injured the plaintiff if the plaintiff was in a zone of danger created by the defendant. Further, there cannot be any compelling policy reason for refusing to impose duty of care.
  • Standard of care - Negligence takes place when the conduct by the defendant falls below a certain standard. Factors that create a breach in the standard of care include violating a statue which can create an arguable presumption of negligence, community custom or an emergency that caused action by the defendant to keep an increased harm from occurring.
  • Causation – This simply states that there must be proof by the plaintiff that carelessness on the behalf of the defendant caused the plaintiff to suffer damage.
  • Standard of proof – The balance of probabilities is proof of all three facets by the plaintiff. Additionally, it must be demonstrated by the plaintiff that there was more than a 50 percent chance that the actions of the defendant resulted in the harm to the plaintiff.

Defenses to Negligence

There are many various defenses to negligence that may be presented but common defenses are recognized as:

  • Remoteness – The defendant will not be held liable in cases where the plaintiff’s loss suffered was too remote, even when the elements of proof exist.
  • Intervening act – Restricted liability for an even that happens after the defendant’s negligence which worsens the plaintiff’s harm or damages.
  • Contributory negligence – This assess responsibility to the plaintiff due to carelessness on the part of themselves and the defendant. The burden of proof lies with the defendant.
  • Voluntary assumption of risk – Means that the plaintiff was aware of the risk and voluntarily engaged in the activity, leaving no course for defendant liability.
  • Joint and several liability – Addresses more than one defendant causing a single injury. Vicarious liability – This form of defense holds the employer liable for torts committed by employees during the course of employment.

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