Defenses

The common law provides an action for damages to persons injured as a result of the negligence of another. This common law claim may furnish the basis for redress to persons injured in an automobile accident, in a gas explosion, by a defective product, by medical malpractice, or the negligent conduct of an employee. 
Elements of Negligence. 

Lack of Usual Care. Negligence may be proved by showing that the defendant failed to use ordinary care, or breached a recognized legal duty to the plaintiff. A driver fails to look before entering an intersection; a physician fails to follow accepted medical procedures; a manufacturer uses dangerously weak materials. Sometimes negligence is established by evidence of what others do in similar circumstances. Sometimes negligence is established because the defendant violated a statute, regulation or recognized engineering standard.

Direct Cause. The negligence actually caused the injury or damage. Sometimes when an accident or injury occurs, negligence can be proved, but the defendant claims that the injury would have happened anyway, even if he had used ordinary care. For example, in a medical malpractice case, the plaintiff might contend that the physician used the wrong medication. The physician might defend claiming that, even if he had used correct medication, the patient would have died anyway. Causation must be proved to establish a claim for damages under a negligence theory. 

Damages. The plaintiff must establish damages resulting from the negligent conduct. The law recognizes a variety of damages, depending upon the circumstances. Damages might include medical expenses, lost profits, or lost wages. In addition, in cases involving personal injury, the plaintiff may recover damages designed to compensate for pain and suffering.

Proximate Cause. The law of negligence requires that the negligence must "proximately cause" the injury. Proximate cause is a complex legal concept, designed to place reasonable limits on negligence actions. 

Defenses to Negligence. In addition to the elements of a negligence claim, described above, the defendant may interpose certain defenses. These defenses may seek to reduce the amount of the plaintiff's claim, based upon "contributory negligence." Or they may seek to destroy the claim altogether, as in the defense of assumption of the risk. Or they may seek to shift the ultimate responsibility elsewhere. These defenses will be discussed in another panel.