What Does Negligence Mean In Insurance?

Negligence definitions may vary by case law but are generally defined by such terms as the "failure to exercise care," or "failure to do what a reasonable person would have done under the circumstances" or "doing something which a reasonable person would not have done under the circumstances."

Of course these definitions require even further definition in order to determine the type of care that should have been exercised and what exactly would a reasonable person do in the particular circumstances.

The duty owed depends on the particular circumstances of the case. Thus, a person owes a greater degree of care to someone who has been invited to a premises (an invitee) than to a trespasser.

Some states distinguish between the degree of care owed to business guests or invitees and that owed to social guests to whom a lesser degree is required. If the person's premises is readily accessible to children, there may be a requirement for greater care to them than to adults.

Courts in some jurisdictions are rejecting the distinctions among invitees, licensees and trespassers and are substituting foreseeability and reasonable care as a basis for determining liability. The degree of care required depends on the nature of the activities conducted by the individual or firm, and the type of product being handled.

A higher degree of care is expected from one who keeps a lion on premises than from another who has a house cat. Similarly, a person who manufactures a motorcycle is expected to take more precautions to prevent its causing injury than the person who manufactures office supplies.

The degree of care expected in each instance is commensurate with the risk involved. For example:

• Because Ariel and Lana were on a public sidewalk, their degree of care was the same.
• If the accident occurred in a store owned by Lana, Lana would have a very high degree of care for Ariel because she would be a customer and an invitee.
• If Ariel was a vendor at Lana's store, the degree would be less because she would be on his premises for her own interests as well as Lana's.
• If Ariel entered the store after hours, Lana would have very little degree of care because Ariel would be a trespasser.

The location of an accident and the relationship of the parties involved in the accident help to determine negligence.

As was mentioned above, a person whose premises is readily accessible to children will be expected to take great care to avoid injury to the children.

If there is something on the premises that will draw a child to investigate or use it, the owner of the property may be liable for the injuries sustained by the child, even though the item was entirely within the premises and the child trespassed on the property.

The attractiveness of the object, if above ordinary, is held to be an implied invitation to the child to enter the premises and raises the status of the child above that of a trespasser.

Swimming pools, wells, shafts, caves, construction sites and similar attractions, which have a strong attraction for children, have been held to be "attractive nuisances" or "attractive hazards," and the owner is charged with a responsibility to keep children from coming to harm through such "attractions."

At what age does a child become a trespasser? Some states differentiate by age and each of those states sets its own limitation. Sixteen is one cutoff date, but other states use 14 or even 12. Some states use the term "tender years" and allow the courts and juries to decide if the particular child remained in those "tender years."

Children under seven may never be considered trespassers because they are not capable of comprehending the danger while those between the ages of eight to fourteen may be held to a higher standard of comprehension but still remain under the attractive nuisance statutes.

In some states, even though a person can show that the negligence of another caused damages, that other party may still not be liable for the damages.

In those states, a person who is claiming damages due to another's acts must not have contributed to the accident in any way. The injured party must be free of contributory negligence.

Last Clear Chance - On the other hand, even where the injured party was guilty of contributory negligence, the defendant may still be liable, if he or she had a "last clear chance" to avoid the accident and chose not to exercise that chance.

Such "last clear chance" may be held to override the plaintiff's contributory negligence.

It is important to note that contributory negligence rules are no longer followed in most states, having been replaced by the comparative negligence rules.

Almost all of the states have enacted legislation or follow judicial interpretation that modifies and abolishes the strict requirement that a plaintiff be free of contributory negligence in order to recover damages.

There are three types of comparative negligence systems in use now: "pure" comparative negligence, "modified" comparative negligence, and "slight vs. gross" comparative negligence.

The "pure" form allows the claimant to recover reduced damages up to the point where it can be said that his or her own conduct was the sole cause of his or her damage.

This means that even if the defendant is only 1% at fault and the plaintiff is 99% at fault, the defendant can be made to pay the 1% of damages.

Because the pure method seems as burdensome to a defendant as the contributory negligence is burdensome to the plaintiff, appropriate modifications were introduced.

The point at which the plaintiff is barred from any recovery differentiates the modifications. The first is called the "not as great as" or "49% system." It allows the claimant to recover damages, reduced by the percentage of the claimant's causal negligence, as long as his or her contribution to the total negligent conduct causing his or her injury is "less than" or "not as great as" that of the party from which recovery is sought.

When the claimant's negligence is deemed to be equal to or greater than that of the defendant, the claimant is completely barred from any recovery.

Another "modified" rule has been designated the "not greater than" or "50% system." It allows the claimant to recover reduced damages as long as his or her comparative contribution to the total negligence is not greater than that of the party from whom recovery is sought.

When the claimant's comparative fault is greater than that of the other party, contributory fault of the claimant bars his or her recovery.

Under the "slight vs. gross" system of comparative negligence, the claimant may recover reduced damages only when he or she is deemed to be guilty of slight negligence in comparison with the gross negligence of the defendant.

The Main difference between comparative vs contributory negligence is that comparative negligence seeks to compensate the injured party at least for some part of his or her damages or injuries, while contributory negligence is a total bar to any damage award to the plaintiff. For example:

John may be at fault but Sarah is also. In a contributory negligence state, Sarah has no case because she directly contributed to the injury by not looking before reaching for the bill.

In a comparative negligence state, a determination must be made as to how much each person contributed to the accident.

In a "pure" comparative state, if Sarah is 50% negligent, she can collect 50% of her damages.

In a "not greater than" or "not as great as" state, if Sarah and John are equally at fault, there is no case for either side.

In the slight vs. gross negligence state, Sarah also would have no case because negligence was equal.

Although the general rule is that the plaintiff must prove the negligence of the defendant, the occurrence of an accident under certain conditions is deemed to be prima facie evidence of negligence. This is known as the doctrine of res ipsa loquitur - the thing speaks for itself.

Generally, this rule will apply when what caused the accident was under the control of the defendant and the accident was clearly of a kind that does not occur when proper care is exercised.

The doctrine of res ipsa loquitur is not invoked except when necessary evidence is absent or not readily available. Thus, after a train is derailed, it may not be possible to determine the cause of the accident. The injured parties are not burdened with proving the negligence of the railroad.

The doctrine has the effect of justifying an inference of negligence or, in some jurisdictions, of establishing a presumption of this nature. For Example:

Sarah believes she has a clear case of res ipsa loquitur. She is injured and John is the one who caused it. The facts speak for themselves, so why argue about negligence?

John argues that the facts are not as obvious as Sarah makes them appear. She didn't see him and he didn't see her.

The cause of the accident is the $100 bill and the greed of John and Sarah.

This is not a case of res ipsa loquitur.

There are some circumstances where normal standards of innocence are not considered applicable. Instead, the object or person that caused the injury is considered to be at fault unless it can be proven that the injured person acted in such a gross and negligent way as to bring the injury onto himself or herself.

The burden of proof moves away from the plaintiff and rests on the defendant. In most states if an individual keeps exotic animals on premises, there is strict liability for any injury inflicted by the animal-even if the injury was to a person trespassing on the property.

This standard is also used in most product liability suits because of Uniform Commercial Article 2 which has been adopted in most states.

If a person is injured when using a product, the product is viewed as defective unless the manufacturer can prove that the product was used in a way that was irresponsible. This explains most of the warnings on products. For Example:

Sarah is sure this is a case of strict liability. She is the innocent party and John is the one who injured her. Aren't her injuries enough to force John to take responsibility?

John was not doing anything inherently dangerous or operating in a realm of defined higher responsibility. He was merely walking down the street.

He did nothing to consider his actions subject to a strict liability determination.

Because Sarah cannot establish negligence by John, she has no tort action.

A tort is a violation of another's natural right. As was discussed earlier, most torts are committed unintentionally, as in the case of negligence that causes injury or damage. Examples of negligent torts would be the failure to keep a sidewalk in repair, negligence in the operation of a motor vehicle, malpractice by a physician, improper and unsafe maintenance of premises.

When a person has been injured or has suffered loss due to the negligent tort of another, the law recognizes the right of the injured party to redress. One definition of redress is the right of receiving compensation or money damages.

Liability insurance concerns itself with negligent torts. As will be shown in other articles, this form of insurance is designed to protect a firm or an individual from claims that may be brought against him or her for negligent torts.

It is, therefore, important for the insurance practitioner to have an understanding of the nature and extent of liability between persons, the restrictions and time limits on suits, and the liability of a person for the actions of others. Some of the more important statutes and practices on these matters appear below under several headings.

It should be stressed, however, that these are presented in barest outline. Therefore, the reader is urged to check further into the laws of his or her state on any point made.

All employers are obligated to protect the public from the wrongful acts of their employees. The courts hold an employer liable for the torts committed by employees if the actions occur in the course of their employment.

At law, a Servant is anyone who, for a lawful consideration, undertakes to perform a lawful pursuit at the Master's direction. Among the tests used in determining whether a Master-Servant relationship exists are:

1. The power to hire and discharge
2. The power to control the conditions of employment

In contrast, when the work is being done by one engaged for a fixed sum without reference to the hours or conditions of employment, and the principal exercises no direct control over the work, or the employment practices of the one engaged to render the service, courts usually rule that no employer-employee relationship exists.

It should be understood, however, that the question is often debated. The increased use of contract labor, outsourcing and other non-employee relationships has increased the difficulty in determining how to apply this statute.

A Master is not liable for the torts of the Servant except when they are committed within the scope of the employment. Thus, if a porter pushing a hand truck down the street runs into a pedestrian, the employer will be liable for the injury because it arose in the course of the porter's employment.

However, if the porter left his truck to go across the street and got involved in a fight, the injuries he might cause would not be within the scope of his employment and his employer would not be liable.

In many cases, the question becomes a close one. Thus, if a person was hired to keep order during a sale, and this employee became involved in a fight with an obstreperous customer, the question might be decided either way, depending on the individual circumstances of the case.

When, in the course of employment, an employee commits a tort, both the employee and the employee's employer may be sued. The plaintiff may satisfy his or her judgment against one or both. The employer may in turn sue the employee for indemnity against the liability to the third party from the employee's tort.

The points made above relate only to the question of an employer's liability for torts committed by employees. When the employee is injured in the course of employment, the liability of the employer to the employee is determined according to special workers compensation statutes. For example:

Sarah has a new direction for the lawsuit for her injuries. John was driving a company-owned car to the wedding of two of his clients. She decides to sue John's employer.

Her rationale is that John was not going to a social function but instead was attending a business function and, therefore, was acting on behalf of the employer.

As was mentioned earlier, a person is generally not held liable for the torts of another. A broad exception is made for employers whose employees commit a tort in the course of their employment.

In addition to the liability of employers for the torts of their employees, most states provide by statute that a person may be liable for damages caused by another's negligence in operating that person's motor vehicle.

In some states, the rules have been extended to another's negligence in operating that person's aircraft and boats as well as automobiles.

The laws of the many states make parents vicariously liable for negligent actions of a minor. In some states, minors who apply for a driver's license must have their application signed by a parent with the parent agreeing to accept liability for the negligent torts of the minor.

State statutes also impose liability on the parents of a minor for the intentional, willful or malicious damage to property done by that minor.

Most state statutes broadly assign the owner of a motor vehicle liability for damages caused by the negligence of anyone operating the vehicle but only if the vehicle is being used with either implied or expressed permission.