now we'll talk about negligence
where an intentional tort is about someone doing something they weren't supposed to do
negligence usually happens when someone
doesn't do something they were supposed to do
there are 3 parts to a negligence case
duty breach and causation
first, duty... heh, "duty"
this is your duty not to expose other people to unreasonable risk of harm
the test for whether what you're doing is unreasonable is
whether a reasonable person in your situation would do the same thing
your situation include your basic physical attributes
but usually not your mental attributes
children are compared to other children except when they're doing something
usually only done by adults
so basically it's up to the court to decide reasonableness
they have to decide if what you did was too crazy or negligent
if they do, you've breached your duty if they don't, you're off the hook
they can take into account what you were doing and why when deciding whether or
not you were being reasonable and some actions are more reasonable than others
they can also take into account the way things are usually done to see if you
were just following the customary practice
sometimes you can make yourself seem more reasonable guy warning other people
of the danger involved with whatever you're doing
some warnings are a little more effective
while others won't do you much good
the court may not even have to decide whether what you did was reasonable
if it was also against the law
there's a rule called negligence per se that says if what you did was against
the law and you do it anyway and
you hurt someone you've automatically proven that you acted unreasonably
the one catch is that the law has to be designed to deal with something
reasonably close to harm you caused
so breaking a law against using guns in certain places and ending up shooting
someone would count because the law
was written to protect people from being shot
breaking a law against driving without your lights on at night and then your car
exploding would not count even if it hurt someone
because that's not the kind of thing the law was designed to deal with
incidentally a malpractice suit
where you sue a professional like a doctor or a lawyer for bad service
is in many ways just a fancy negligence case, the difference is in the duty
where an ordinary person just owes you the duty of acting reasonably
to keep you from being hurt
when you pay a professional they have the duty of doing at least as good a job
as a minimally qualified member of their profession
you'll note I said minimally qualified they don't have to be the best
they don't even have to be in the middle they just had to be good enough to be a
doctor even if that means they were the bottom of the class
so now on to breach
this part is really easy. if there was a duty did you break it?
did you put someone else an unreasonable risk of harm?
next is causation. did you breaching your duty cause harm?
it's always nice when you do something bad and it doesn't hurt anyone
but don't push your luck and just hope nothing bad happens
if you do breach a duty and something bad happens
the court will examine the facts
the test that usually applies is called the "but for" test
this just asks would the harm not have happened "but for" the person being sued
having breached their duty?
if they had kept their duty would the bad result have been avoided?
after all there are times you do something bad
but it's not the reason something bad happens
sometimes your negligence can even
put you on the hook for
someone else's negligence
if you put someone in an unreasonable risk of being harmed by someone else
you might both be sued even though you didn't directly hurt anyone
and there you have it