36. NEGLIGENCE

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.

Contributory Negligence

When contributory negligence first appeared in the repertoire of personal injury lawyers, the standards of proof needed to succeed were quite high and very severe. Originally, under the doctrine of contributory negligence if it were shown that the plaintiff contributed in any way to his injuries, he was barred from any recovery. This has been modified over time to permit the plaintiff to recover even if he contributed to his injuries, as long as his fault is under 50 percent. In these cases, recovery is relative to fault. For instance, if a jury finds a party's injuries worth $100,000 and holds that the party was 25 percent at fault, the party's recovery would be $75,000. On the other hand, if the jury found the party 60 percent at fault, the party would be barred from any recovery.

Comparative Fault

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.

Contribution Among Tortfeasors

In the doctrine of joint and several liability among tortfeasors, when there are multiple tortfeasors ("guilty" parties), all parties are equally liable for the damages caused to the injured party. This doctrine is quite harsh. For example, if the driver of a truck hits a pedestrian at night and the jury holds that the city is 15 percent responsible because it did not properly maintain the lighting at that portion of the road and the truck driver, who is 85 percent at fault, is uninsured, unemployed, and without assets, the city can be made to pay 100 percent of the damages. Under the doctrine of contribution, one tortfeasor may sue a fellow tortfeasor to recover any damages paid in excess of the proportion of fault. In most comparative fault states liability is the proportionate responsibility of each party.

The State of the Law

As can be seen by looking at the table of negligence laws, there is great diversity among the states as to how negligence is handled. As the law of negligence continues to mature and change, courts have led the way in defining the laws and legislatures have in may cases responded with statutes that both recognize the cause of action and often limit it as well.

There have been many attempts over the years to have Congress or state legislatures pass laws that would specifically limit the amount of recovery available to plaintiffs in negligence actions. So far, none has met with much success. Under the general term "tort reform," such acts promise to be proposed in the future.

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