A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).
Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. See Restatement (Third) of Torts: Liability for Physical Harm § 3 (P.F.D. No. 1, 2005). Negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. See Restatement (Second) of Torts § 282 (1965). Five elements are required to establish a prima facie case of negligence: the existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of physical harm by the negligent conduct; physical harm in the form of actual damages; and proximate cause, a showing that the harm is within the scope of liability. Negligence is an actionable tort. This means that if one person’s carelessness causes another personal injury, the injured party may sue to recover damages (money) for his or her injuries.
The idea that a person can sue for negligence is a relatively new phenomenon, only about a century old. The reason for negligence’s late recognition is because common law traditionally recognized only intentional torts; that is, it held parties responsible for injuries that were the result of intentional acts. It was irrelevant that the actor did not intend to injure anyone, much less the injured party, but it only needed to be shown that the actor intended the action that caused the injury. In these cases, evidence of who caused what injury was affirmative, direct, and fairly objective. The concept of permitting someone to recover damages for injuries caused by someone’s lack of action or failure to do something was a revolutionary concept. Since its recognition as an action in tort, negligence has become a major source of very large jury awards.
It is the root of all product liability cases. When people complain about our legal system and the outrageous verdicts being awarded nowadays, they are speaking about negligence. Originally, negligence was recognized by the courts as part of the common law. Over time, as causes of action became more numerous and as damages became larger, various efforts were undertaken to limit the appeal of negligence lawsuits. The doctrine of contributory negligence eventually evolved, in some states, into a system of comparative fault that permitted recovery on a completely relative scale. Thus, in an accident one could be 90 percent at fault for one’s own personal injury and still sue to recover the 10 percent of the damages suffered that were caused by the other party.