negligence,n.1. The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard

established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. • The term denotes culpable carelessness. The Roman-law equivalents are culpa and neglegentia, as contrasted with dolus (wrongful intention). — Also termed actionable negligence; ordinary negligence; simple negligence. [Cases: Negligence 201, 233, 250. C.J.S. Negligence §§ 14, 34, 59, 118–121, 125–127, 130–131, 133.] 2. A tort grounded in this failure, usu. expressed in terms of the following elements: duty, breach of duty, causation, and damages. [Cases: Negligence 202. C.J.S.

Negligence §§ 21–31, 64, 649.]

“Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safety of others.” Patrick Devlin, The Enforcement of Morals 36 (1968).

“During the first half of the nineteenth century, negligence began to gain recognition as a separate and independent basis of tort liability. Its rise coincided in a marked degree with the Industrial Revolution; and it very probably was stimulated by the rapid increase in the number of accidents caused by industrial machinery, and in particular by the invention of railways. It was greatly encouraged by the disintegration of the old forms of action, and the disappearance of the distinction between direct and indirect injuries, found in trespass and case …. Intentional injuries, whether direct or indirect, began to be grouped as a distinct field of liability, and negligence remained as the main basis for unintended torts. Negligence thus developed into the dominant cause of action for accidental injury in this nation today.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 28, at 161 (5th ed. 1984).

“Negligence is a matter of risk — that is to say, of recognizable danger of injury …. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. But it may also arise where the negligent party has considered the possible consequences carefully, and has exercised his own best judgment. The almost universal use of the phrase ‘due care’ to describe conduct which is not negligent should not obscure the fact that the essence of negligence is not necessarily the absence of solicitude for those who may be adversely affected by one’s actions but is instead behavior which should be recognized as involving unreasonable danger to others.” Id. § 31, at 169.

active negligence.Negligence resulting from an affirmative or positive act, such as driving

through a barrier. Cf. passive negligence.

advertent negligence.Negligence in which the actor is aware of the unreasonable risk that he

or she is creating; RECKLESSNESS. — Also termed willful negligence; supine negligence. casual negligence.A plaintiff’s failure to (1) pay reasonable attention to his or her surroundings, so as to discover the danger created by the defendant’s negligence, (2) exercise reasonable competence, care, diligence, and skill to avoid the danger once it is perceived, or (3) prepare as a reasonable person would to avoid future dangers.

collateral negligence.An independent contractor’s negligence, for which the employer is


comparative negligence.A plaintiff’s own negligence that proportionally reduces the damages

recoverable from a defendant. — Also termed comparative fault. See COMPARATIVE-NEGLIGENCE DOCTRINE. [Cases: Negligence 549. C.J.S. Negligence §§


concurrent negligence.The negligence of two or more parties acting independently but

causing the same damage. Cf. joint negligence.

contributory negligence. 1. A plaintiff’s own negligence that played a part in causing the plaintiff’s injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages. • In most jurisdictions, this defense has been superseded by comparative negligence. See CONTRIBUTORY-NEGLIGENCE DOCTRINE. [Cases: Negligence 547. C.J.S. Negligence §§ 293, 297.] 2.Rare. The negligence of a third party — neither the plaintiff nor the defendant — whose act or omission played a part in causing the plaintiff’s injury. [Cases: Negligence 540. C.J.S. Negligence § 267.]

“The contributory negligence of a third party is no excuse for the negligence of the defendant.” Thomas E. Holland, The Elements of Jurisprudence 154 (13th ed. 1924).

criminal negligence.Gross negligence so extreme that it is punishable as a crime. • For example, involuntary manslaughter or other negligent homicide can be based on criminal negligence, as when an extremely careless automobile driver kills someone. — Also termed culpable negligence; gross negligence. [Cases: Criminal Law 23; Negligence 1800–1802.

C.J.S. Criminal Law § 38; Negligence §§ 913–914, 916.]

“Though the legislatures and the courts have often made it clear that criminal liability generally requires more fault than the ordinary negligence which will do for tort liability, they have not so often made it plain just what is required in addition to tort negligence — greater risk, subjective awareness of the risk, or both. Statutes are sometimes worded in terms of ‘gross negligence’ or ‘culpable negligence’ or ‘criminal negligence,’ without any further definition of these terms…. The courts thus have had to do their best with little guidance from the legislature, with varying results.” Wayne R. LaFave & Austin W. Scott Jr., Criminal Law § 3.7, at 235–37 (2d ed. 1986).

culpable negligence. 1. Negligent conduct that, while not intentional, involves a disregard of

the consequences likely to result from one’s actions. 2. See criminal negligence.

“ ‘Culpable negligence,’ while variously defined, has been held incapable of exact definition; it means something more than negligence …. In connection with negligence, the word ‘culpable’ is sometimes used in the sense of ‘blamable,’ and it has been regarded as expressing the thought of a breach of a duty or the commission of a fault; but culpable negligence has been held to amount to more than ‘blameworthy’ conduct …. It does not involve the element of intent …. On the other hand, it has been said to be intentional conduct which the actor may not intend to be harmful but which an ordinary and reasonably prudent man would recognize as involving a strong probability of injury to others.” 65 C.J.S. Negligence § 1(13) (1966).

gross negligence. 1. A lack of slight diligence or care. [Cases: Negligence 273. C.J.S. Negligence §§ 91–97.] 2. A conscious, voluntary act or omission in reckless disregard of a legal

duty and of the consequences to another party, who may typically recover exemplary damages. — Also termed reckless negligence; wanton negligence; willful negligence; willful and wanton negligence; hazardous negligence; magna neglegentia. [Cases: Damages 91; Negligence 273. C.J.S. Damages §§ 202–207; Negligence§§ 91–97.] 3. See criminal negligence.

“Negligence is gross if the precautions to be taken against harm are very simple, such as persons who are but poorly endowed with physical and mental capacities can easily take.” H.L.A. Hart, “Negligence, Mens Rea and Criminal Responsibility,” in Punishment and Responsibility 136, 149 (1968).

“Gross Negligence. As it originally appeared, this was very great negligence, or the want of even slight or scant care. It has been described as a failure to exercise even that care which a careless person would use. Several courts, however, dissatisfied with a term so nebulous … have construed gross negligence as requiring willful, wanton, or reckless misconduct, or such utter lack of all care as will be evidence thereof …. But it is still true that most courts consider that ‘gross negligence’ falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 211–12 (5th ed. 1984).

hazardous negligence. 1. Careless or reckless conduct that exposes someone to extreme

danger of injury or to imminent peril. 2. See gross negligence.

imputed negligence.Negligence of one person charged to another; negligence resulting from a party’s special relationship with another party who is originally negligent — so that, for example, a parent might be held responsible for some acts of a child. [Cases: Negligence 483, 575; Parent and Child 13.5(2). C.J.S. Negligence §§ 152–153, 268–280; Parent and Child § 191.]

inadvertent negligence.Negligence in which the actor is not aware of the unreasonable risk that he or she is creating, but should have foreseen and avoided it. — Also termed simple negligence.

joint negligence.The negligence of two or more persons acting together to cause an accident.

Cf. concurrent negligence.

legal negligence.See negligence per se. negligence in law.Failure to observe a duty imposed by law. See negligence per se.

negligence per se.Negligence established as a matter of law, so that breach of the duty is not a jury question. • Negligence per se usu. arises from a statutory violation. — Also termed legal negligence. [Cases: Negligence 259. C.J.S. Negligence §§ 134–147.]

ordinary negligence.Lack of ordinary diligence; the failure to use ordinary care. • The term is most commonly used to differentiate between negligence and gross negligence. [Cases:

Negligence 232.]

passive negligence.Negligence resulting from a person’s failure or omission in acting, such as

failing to remove hazardous conditions from public property. Cf. active negligence.


professional negligence.See MALPRACTICE. reckless negligence.See gross negligence. simple negligence.See inadvertent negligence.

slight negligence.The failure to exercise the great care of an extraordinarily prudent person, resulting in liability in special circumstances (esp. those involving bailments or carriers) in which lack of ordinary care would not result in liability; lack of great diligence.

subsequent negligence.The negligence of the defendant when, after the defendant’s initial negligence and the plaintiff’s contributory negligence, the defendant discovers — or should have discovered — that the plaintiff was in a position of danger and fails to exercise due care in preventing the plaintiff’s injuries. — Also termed supervening negligence. See

LAST-CLEAR-CHANCE DOCTRINE. [Cases: Negligence 530. C.J.S. Negligence §§ 281–290,

313, 318.] supine negligence.See advertent negligence.

tax negligence.Negligence arising out of the disregard of tax-payment laws, for which the Internal Revenue Service may impose a penalty — 5% of the amount underpaid. IRC (26 USCA)

§ 6651(a). [Cases: Internal Revenue 5219. C.J.S. Internal Revenue § 824.] wanton negligence.See gross negligence.

willful and wanton negligence.See gross negligence. willful negligence.See advertent negligence.

[Blacks Law 8th]