Negligence. You may be familiar with the term, but do you actually know what it means? Unless you are an attorney or have been involved in litigation alleging negligence, probably not. Simply put, a suit claiming negligence asks the court to rule that the defendant breached a duty of care that they owed you, and in doing so caused you harm, such that you should be awarded damages for the negligence.


There are four elements to have to be shown in a claim alleging negligence: (1) A duty of care owed by one party to the other; (2) a breach of that duty; (3) that the breach actually and proximately caused your injuries; and (4) damages.


First, there must exist a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury. The specific standard of conduct required generally is to act as an ordinary, prudent, reasonable person. It is presumed that an ordinary, prudent, reasonable person will take precautions against creating unreasonable risks of injury to other persons.


The applicable standard of care can change depending on the relationship between the parties. For example, professionals are usually subject to standards of practice among members of the same profession with similar training and experience in similar communities. In North Carolina, a defendant under the age of 7 is considered incapable of negligence as a matter of law, irrespective of that child’s special abilities or the fact that the child in fact appreciated the danger. [Allen v. Equity & Investors Management Corp., 56 N.C. App. 706 (1982)]


The second element of negligence requires a breach of that duty of care by the defendant. Proof of breach must be determined by two factors: (1) it must be shown what in fact happened; and (2) it must be shown from these facts that the defendant acted unreasonably.


The third element of negligence requires showing that the breach of duty by the defendant was the actual and proximate cause of the plaintiff’s injury. Actual cause is also known as causation in fact. Before the defendant’s conduct can be considered a proximate cause of the plaintiff’s injury, it must first be a cause in fact of the injury. Several tests exist for this determination, and the most popular is the “But For” test – An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. Under certain circumstances, the “but for” test is inadequate to determine causation in fact, but we won’t cover any others in this article.


Proximate cause is also known as legal causation. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.


Finally, the fourth element of negligence requires damage to the plaintiff’s person or property. This means actual harm or injury. Unlike with some intentional torts, damage will not be presumed under a negligence tort theory. The plaintiff has to prove how they were damaged, and if they are seeking monetary damages, how much money the damage cost them and/or will continue to cost them into the future.


North Carolina generally follows the majority rule that violation of a statute is negligence per se. Negligence per se is a legal doctrine that says an act is considered negligent because it violates a statute, and thus only applies in limited circumstances. This concept primarily applies to safety statutes with criminal penalties, such as traffic violations under Chapter 20 of the North Carolina General Statutes.


North Carolina is also a contributory negligence state. Contributory negligence is a common law doctrine that provides a complete defense to a negligence claim if it is shown that the damages are at least partly due to the plaintiff’s negligence. Last clear chance is a defense to contributory negligence, and a finding of last clear chance will allow a contributorily negligent plaintiff to recover against the defendant. Last clear chance is described in a common sense way – if the defendant had the last clear chance to avoid the collision (or whatever circumstances led to the injuries/damages), the defendant will not be able to avoid liability by proving that the plaintiff contributed to the damages through his or her own negligence.


Negligence can be a confusing concept, so you should seek the advice of a qualified attorney if you think you have a claim.



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