Negligence

Definition of Negligence
Negligence is the basis of liability claims. The insured must have been negligent to be in a position to be sued against liability.

If you are negligent, then therefore you are at fault. This is the failure to use a generally acceptable level of caution and care. A common definition is: failure to use the care that a reasonable and prudent person would have used under the same or similar circumstances.

What must be present?
There are four elements that an injured person must show when proving negligence:

  1. the existence of a legal duty to use reasonable care,
  2. failure to perform that duty,
  3. damages or injury to the claimant,
  4. and proximate cause relationship between the negligent act and the infliction of damages.


Common example of negligence
An example of negligence is when a person has icy sidewalks that should be cleared of ice and snow during the winter months. The person does not clear the sidewalk in a reasonable amount of time. An elderly person walking down the sidewalk slips and falls resulting in a hospital stay. The person who has care, custody and control of that sidewalk - perhaps the tenant of the home, should have cleared the sidewalk. If that tenant has not paid his insurance and therefore does not have coverage, then the landlord's insurance policy may have to respond.

A different outcome
Consider the same situation and a person walking down this same sidewalk dressed very inappropriately for the weather and conditions. This person has on high-heeled shoes and is wearing a very tight skirt. This clothing restricts normal movement and the shoes are very slippery. This could be a case where the liability is split between the two parties with both assuming part of the blame.

Risk management
Now consider the same sidewalk has a sign posted, "slippery surface - tread carefully" with danger markers at the beginning and end of the icy portion. Has the duty of care been met? The level of negligence would have to be weighed against the efforts that have been made to try and control the risk. Is there a problem with this sidewalk that the ice cannot be totally cleared away?

The insurance answer
What is interesting in all of these cases is that your liability insurance would be triggered to investigate and defend you. The legal costs can be quite high, so even if you are not found to be negligent, there can still be considerable expense for the lawyers to establish your innocence.