I thought about just skipping my weekly post, but it seemed like it would be negligent of me. Then again, what does negligent even mean? Does it mean careless, lazy and sloppy? Not legally speaking.
Negligence is a very specific concept. Four elements must be found before a cause of action can be sustained. Oops. I have been hanging out with too many lawyers. Let me speak English. I mean you have to prove four things before you can sue somebody for negligence and win.
- There must be a duty owed to the complaining party. And for my international readers, I am not talking about someone who complains. The complaining party is the person who sues for damages. And by damages, I mean money.
- There must be a breach of that duty. As a homeowner, for example, I have a duty to keep certain things in shape, like my front stairs. If I fail in that duty, visitors might fall through them, and I will have to pay the visitors money, if they can prove two more things.
- There has to be a resulting injury. If you fall through my stairs but sustain no injury, you have nothing to ask me for. You don’t need a doctor; you are not even bruised. Of course, you could argue that the fall caused you emotional distress, and that could be an injury.
- There must be a proximate cause between the breach and the injury. Proximate cause is also called the “but for” element. Would you have been injured even if I had not been negligent? If so, then don’t blame me, or at least don’t sue me for money. Going back to the steps, if a visitor falls down my steps because he had too much to drink, and not because his foot ended up in the rotten step, he has no one but himself to blame. Well, okay, he also has me, the lazy homeowner to blame, but he will probably not be able to prove that I was negligent, in the legal meaning, if he would have fallen anyhow.
Unless I, as hostess, plied him with alcohol, which was the proximate cause of his falling, and there we go again, running off to court.
The duties we owe each other are countless. The ways in which we can fail in performing those duties are endless. Injuries happen every day. Pointing fingers at each other and blaming each other for our injuries and suffering is a national pastime. I am guilty of having done so myself. And yet proving that the harm one has suffered is solely the result of someone else’s failure to fulfill a duty is often harder than it would seem. All of which serves to explain why I have not been sued – yet.