Elements of Negligence

The word negligence literally means a state of being careless. In the Latin language the word actually means, 'not to pick up something'. Negligence principle is applied in tort or derelict cases. Negligence with effect, is non intentional and not at all planned. Apart from that, several legal systems also do not classify carelessness in literary sense as a synonym of negligence. In a broad sense, from the common man's point of view and from the viewpoint of the legal system, negligence is 'failure to act with sufficient prudence that is possessed by a rational and reasonable human being, which results into physical, material or emotional harm of some other person. The terms accidents, carelessness, mistake and negligence often tend to overlap each other. Courts often take into consideration the practical prevalence, which also defines the subtle line that differentiates these concepts.

A man goes to a mall and slips and falls on the wet, soap-cleaned floor which leads to substantial physical or personal injury. In such a case the mall administrators are expected to put up a 'wet floor' sign, which makes the case a negligence case. However if a child running playfully in the mall falls, then it would an accident. In case, if the person who falls down over the floor which is wet because water has been spilled on it by some visiting person, then the case it that of carelessness. In such court cases, there are no specified totally independent laws for such incidents, hence, 'elements' or 'principles' regarding the case are put to use.

Lord Blackburn, gave a very difficult, yet very apt, definition of negligence, which can be applied as a test to know if a said incidence is a negligence case or not. Here's the comment:

'those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision'

The Five Elements of Negligence

The elements of gross negligence can be five, or in some cases, four, that are defined by the jurisdiction. Irrespective of legal system and jurisdiction, negligence cases are resolved with the help of some steps that must be fulfilled, and are noted as elements. In cases where the elements are fulfilled, the defendant may be held liable to lawsuit settlements. Here they are...

1. Duty of Care
Rather than calling it as a duty of care, it must be called the duty of caring. According to the element, the legal system of England cites through the ruling of several prominent cases, that every rational human being of sound mind has been bestowed with the duty to care for the fellow human being. For example, you cannot throw a banana peel on the road, as it is bound to cause some other person harm. If you are selling a consumable to other person, then you must make sure that the consumable is not capable of causing harm to the other person. Though not written down as a law the element of duty to care, is an integral part of negligence cases. In order to determine whether a said negligence is a legally punishable negligence, or not, the court will decide, whether the harm caused was genuinely foreseeable or not or whether there was sufficient proximity in the two parties, or if the harm is fair, just and reasonable.

2. Breach of Duty
The next aspect is to establish whether the defendant owed any moral or obligatory duty to the plaintiff or not. In such a situation, it is not mandatory for the defendant to have any contractual liability towards the plaintiff. In such a case several incidences are ruled out by the court. The responsibility can be moral or legal.

3. Factual Causation
The factual causation is basically the procedure where it must be proved rationally, in the court of law, that some or the other defendant's actions led to damage on the plaintiff's behalf. The action, in some cases, is also deemed to be abstaining from an action. This fact can again be disputable on several basis, but the proven fact, must go hand in hand with the other elements, so make the said case valid. In case of such a validity, the defendant is said to be liable to damages.

4. Legal Causation or Remoteness
In several cases the causation can be proven to be factually correct, but is not in consistency with the legal system, that is holding the causation true factually, as well as legally true, would result into violation of other laws or norms or ethics. In such a case, another known alternative is whether there was proximity between the two people. In such a case, a person slipping and falling over a banana peel cannot go and sue the banana vendor who is standing a block away, for not picking up the peel.

5. Harm
The last thing that is decided by the court is the harm or damage that has been inflicted on the plaintiff. It should be basically substantial and also be rational. The harm is usually decided by the jury, or the judge, and in several cases it may be partially or fully rejected by the court. The harm quotient basically depends upon the situation and the general rational interpretation.

It is not mandatory to prove negligence in a certain pattern or order. The elements principally are the determining rules to asses whether a certain case is a case of negligence or not.