Negligence is the failure to act as a reasonable and prudent person would in similar circumstances. However, judgment regarding who is reasonable and prudent is often left in the hands of those who, themselves, are not reasonable and prudent - jurors. Although this last statement may be seen as an editorial comment, look at it from the perspective of the court room.

Plaintiff attorneys work to convince jurors that the defendant failed to act in a reasonable manner resulting in injury or damage to their client. Defense attorneys try to counter the argument. Plaintiff attorneys have emotion on their side and defense attorney have only factual evidence to present.

What are the facts of negligence? What is required for a person or entity to be considered "negligent?" Factually, there are four parts to negligence:
1) A duty to act or not act;
2) Failure to act or not act as required by the duty;
3) Injury or damage occurs; and
4) Proximate cause. That is, an unbroken chain of events, with no intervening incidents, between the failure to act and the injury or damage. If there are any intervening causes, negligence is questionable.

From an emotional standpoint, the jury "feels" for the person that was injured and puts themselves in the same place. A recent Santa Cruz County (California) Superior Court decision, Jacobs Farm v. Western Farm Services, is a good example.

Jacobs Farm, an organic farm in Santa Cruz, California, was awarded $1 million because pesticides from a local farm made the organic crop unmarketable in both 2006 and 2007. Western Farm Service (the defendant) did not accidentally spray Jacobs' field and none of the spray from their application drifted on to Jacobs' crops. As a matter of "fact," Western applied the pesticides correctly and in accordance with the law.

Nathan Benjamin, Jacobs Farm's attorney, successfully argued that the pesticides evaporated, attached themselves to dust and fog and were deposited on the organic crops; and because Western should have known this could happen they were negligent in causing the loss of two full dill crops (fall 2006 and spring 2007).

Jacobs Farm is surrounded by conventional farms, all using pesticides; and Western applied as per the standard that existed at the time (the law has since changed according to reports). Did Western fail to act in accordance with its duty? If no, then there is no need to go any further. If yes, then was there an unbroken chain of events that led to the damage? The jury thought there was. An appeal is likely.

Negligence Primer

Negligence theories apply differently throughout the country. Following is a discussion of negligence theories, some defenses and a couple unique legal theories surrounding negligence and the resulting damage.

Comparative Negligence: Each party's relative "fault" for the accident is compared and the injured party's (plaintiff) ultimate damages award is reduced by their percentage of culpability. For example, if the plaintiff is found to be 40 percent at fault, the $1,000 damages awarded would be reduced to $600. Three variations of the comparative fault rule are utilized. In each variation, the damaged party's award is reduced by the percentage of their own contribution to the incident:
Pure Comparative Fault: Allows the damaged party to recover even if they are 99 percent at fault. Any award is reduced by their contribution to the injury or damage. Thirteen states apply this rule of comparative negligence: Alaska, Ariz., Calif., Fla., Ky., La., Miss., Mo., N.M., N.Y., R.I., S.D., and Wash;
Modified Comparative - 50 percent Bar: A damaged party cannot recover if they are 50 percent or more at fault. They are able to recover from 0 percent to 49 percent at fault. Twelve states apply this rule of comparative negligence: Ark., Colo., Ga., Idaho, Kan., Maine, Neb., N.D., Okla., Tenn., Utah, and W. Va.; and
Modified Comparative - 51 percent Bar: A damaged party can recover from another party provided they are no more than 50 percent at fault. Twenty-one states apply this version of comparative negligence: Conn., Del., Hawaii, Ill., Ind., Iowa, Mass., Mich., Minn., Mont., Nev., N.H., N.J., Ohio, Ore., Pa., S.C., Texas, Vt., Wis., and Wyo.

Contributory Negligence: Application of the contributory negligence's common law doctrine states that if the injured person was even 1 percent culpable in causing or aggravating his own injury he is barred from any recovery from the other party. This is an absolute defense in the jurisdictions that apply this principle; some jurisdictions require the defendant (the one "most at fault") to prove the negligence of the plaintiff (the one "most damaged"), while others require the plaintiff to disprove any negligence. Only five jurisdictions still apply pure contributory negligence: Alabama, the District of Columbia, Maryland, North Carolina and Virginia.

Defenses

Last Clear Chance: A doctrine in tort law applicable in jurisdictions that subscribe to the contributory negligence doctrine. Last clear chance allows a plaintiff that is contributorily negligent to recover if he is able to prove that the defendant (most at-fault party) had the last opportunity to avoid the accident. Essentially, the plaintiff's negligence is no longer part of the equation. The defendant had time and ability to prevent the accident and failed to take necessary action.

Restated in Legalese: A showing, by the plaintiff, of something new and sequential which affords the defendant a fresh opportunity (of which the defendant fails to avail himself or herself) to avert the consequence of his original negligence.

There are four applicable categories of Last Clear Chance applied by the five remaining jurisdictions that utilize the contributory negligence rule:
Helpless Plaintiff: The plaintiff's initial negligence put him in a position from which he was powerless to escape by ordinary means. The defendant detects the danger with ample time to respond, but fails to act as a "reasonable" person would;
Inattentive plaintiff: The plaintiff did not pay attention to his surroundings putting himself in danger. The defendant discovers the peril and has time to respond, but fails to respond to avoid the accident;
Observant defendant: The defendant actually sees the plaintiff in time to react and safely avoid the incident but negligently fails to respond as a reasonable person would; or
Inattentive defendant: The defendant simply fails to pay attention as a reasonable person should (cell phone is a good example) and is unable to respond to the plaintiff's helpless condition in time to avoid the accident.

Assumption of Risk (Volenti Non Fit Injuria): This is a defense against charges of negligence barring or severely limiting an individual's recovery under the tort of negligence. The defendant must prove that 1) the plaintiff was reasonably aware of and appreciated the danger involved; 2) the plaintiff voluntarily exposed himself to the danger; and 3) the assumed danger was the proximate cause of the injury or damage.

The first element of proving negligence is showing that a duty of care is owed. When one assumes the risk of an inherently dangerous or recognizably potentially dangerous activity, the duty of care is lifted off the individual or entity conducting the activity. With no required duty of care, there can be no negligence. (Defense attorneys in the Jacobs case stated that by situating the farm among so many traditional farms, Jacobs knew the risk existed.)

As stated, it must be proven that the assumed danger was the proximate cause of the injury or damage. A fan attending a baseball game recognizes the risk that he may be hit by a foul ball; thus he has assumed the risk and the owner of the ball park does not have to take unreasonable steps to protect the fan against or to further warn of the possibility of being hit. However, the fan had no reason to expect a concession worker to get angry and hit him with a team flashlight. The assumed risk was not the proximate cause of injury and the owner of the park can still be held negligent (vicariously).

Pure contributory negligence states (again, only five remain) use proven assumption of risk as a complete bar to recovery. Each comparative negligence state applies the assumption of risk defense differently:
• Some view it as a complete bar to recovery where an express written waiver is given by the injured party prior to the injury;
• Others apply "primary assumption of risk" barring recovery when a reasonable person voluntarily proceeds in the face of a known risk; and
• Many simply apply the percentage of the assumption of risk against the ultimate damages award, thereby allowing recovery but reducing the amount of the award.

Special Legal Theories

Eggshell Skull: A legal term based in tort and criminal law that states that tortfeasors take the injured party as they find them. Also known as the "thin skull" rule, it states that if the injured party has a condition that predisposes them to greater injury than the normal human, the tortfeasor is not relieved of any of the costs resulting from the bodily injury just because of the condition. All injury and the costs associated with such injuries are assigned to the individual that committed the initial wrongful act, regardless of the ability to foresee the results or the fact that that the injury is made worse by a preexisting condition or predisposition to injury.

Crumbling Skull: A legal theory sometimes used as a defense to or argument against application of the "Eggshell Skull" rule. The principle behind this defense is that the result would have been the same whether or not the accused wrongdoer was involved. Best exampled in medical practices: the patient was dying; the doctor attempted some radical measures to maintain life and did not succeed and in fact were the proximate cause of death. Crumbling skull principles would not hold the doctor responsible for causing a foregone conclusion. To protect the doctor, the death would have to have been certain within approximately the same time frame.