Negligence is one of those basic legal concepts that is easily stated and easily misconstrued. In the modern age, negligence law has come to define the expected standard of human conduct replacing, for some people, ideas of honor, propriety, and simple right and wrong. An understanding of general negligence principals is essential whether you are a businessman, employee, independent contractor, or customer. Set aside what you know about negligence and read from this point to the end of the article with a virgin mind. Then go back and reflect on your experiences.

NATURE OF THE GENERAL NEGLIGENCE DUTY

The idea of negligence grows out of hundreds of years of law making by judges who defined negligence in broad terms. The courts wanted a rule by which to judge conduct, but they wanted the rule to be flexible enough so that the rule could be applied in various circumstances. As a result, the courts developed a general definition of negligence that could be read to a jury or contemplated by a judge and could be applied to the circumstances of an accident as the judge or jury saw fit.

Technically, negligence is an allegation or accusation. The duty to avoid being negligent is defined in terms of ordinary care. Ordinary care generally means the degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. Ordinary care is the duty to act reasonably.

Negligence is generally defined as the failure to use ordinary care. A person fails to use ordinary care if he/she does something that a person of ordinary prudence would not have done under the same or similar circumstances. Failure to use ordinary care can also occur by omission, or failing to do something which a person of ordinary prudence would have done under the same or similar circumstances. Negligence, then, is a judgment of both acts and omissions.

Product Liability

Product liability is the body of law that provides for compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products and from the failure of a manufacturer or seller to warn the consumer of product dangers.

A products liability claim includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. A products liability claim can only be asserted against one who is a "product seller."

Tort liability protects a consumer's interest in freedom from injury regardless of the existence of an agreement between the parties. Tort law imposes responsibility on manufacturers of defective products because they are best able to encourage safer manufacture and design and to allocate the costs of injury arising from unsafe products. A contractual duty arises from society's interest in the performance of promises and has been traditionally concerned with the fulfillment of reasonable economic expectations. Society's need to spread losses is substantially lessened in commercial transactions where damage is to only the product itself, because those losses essentially relate to the benefit of the bargain between business entities.