What is negligence?

One of the great lessons that I’ve learned in life as a lawyer and as a parent is that we all learn differently. I’ve also discovered that my own learning style isn’t universal for all tasks.  For example if I’m learning for rote memorization for a test, I learn best by reading and rereading material over and over until its burned into my brain.  But to really comprehend concept such that I can explain it to someone else, I need to take the concept and apply it to everyday life.  I used this lesson over and over in life in law school raising toddlers and  in my legal practice.

My oldest daughter was 6 months old when I started law school and the younger one came into being during the first few weeks of law school.  I spent the summer between year one and year two of law school taking care of babies and reading as much as I could ahead so that when school started back in August I could occasionally sleep.  Since I was a part time law student it took me 4 years to complete my degree while balancing work, babies and school.  Balancing family life and law school meant that I had to learn how to learn in any environment and i had to get creative with my study habits.  As my girls got older and more independent this meant reading in the park or at the McDonald’s play zone while keeping one eye on them and one eye on the text book or flash cards I was studying.  One minute I might be trying to teach the concept of sharing to a 2 & 3 year old fighting over the same happy meal toy and the next minute analyzing why burning the flag is considered protected speech under the first amendment.  It wasn’t until much later in my practice, really the last few years, that I even realized how much this experience enhanced my skills as a lawyer in the courtroom, as a teacher to new lawyers, or in counseling my clients on an everyday basis.

Balancing all of this helped me develop those crazy mom eyes that we all get at some point in the parenting process … you know where you can be doing something on one side of the house while knowing exactly what your kids are doing upstairs on the other side of the house.  However, it also taught me to read people for signs of honesty or deceit, to look for signs of understanding,  and to see complicated legal scenarios happening in everyday life.   The other interesting thing about law school that I didn’t understand until I was a real world lawyer, even though I’d heard it a thousand times, is that law school does not teach you the “business of the law” or even what it means to “practice law,” law school teaches you how to think like a lawyer.

When I think back on when I first realized I had started “thinking like a lawyer” I think about a dreary winter day studying at the McDonald’s playground.  On this particular day  I was trying to wrap my brain around the legal concept of  negligence. Law students are taught that the elements of negligence are duty, breach, causation, and harm.  If all of those elements are satisfied then a negligent act occurred. Great but what does that mean???  If the lawyer cannot translate a concept like negligence into real words to a judge, jury or a client its no different than saying well you should know that NaC2H3O2 is sodium acetate because you can clearly see that the elements that make it up are sodium, carbon, hydrogen, and oxygen.  No that’s not how most people think or analyze facts. In fact I only know that because I randomly recall thinking it was funny in high school that a chemical formula was NaCHO but even today I had to look up what NaCHO was called.

So in real world terms what does it mean when someone says you’re negligent? Negligence is the notion that an ordinary person A going about the routine of life has a DUTY of REASONABLE CARE to ordinary person B. If the DUTY is BREACHED by the doing or not doing of some act that the ordinary person A knows or should know could cause harm and the BREACH CAUSES HARM to ordinary person B. Then the ordinary person A is NEGLIGENT and is liable for DAMAGES to ordinary person B. So what are damages? Damages are a dollar figure used to value the harm, because no lawsuit can undue the harm caused by a negligent act, it just can give you money to act as a band aid so the harm doesn’t hurt so bad. And what if the ordinary person B also has a duty not to harm ordinary person A and ordinary person A got hurt too?  This is called contributory negligence. Then what about ordinary person C who is watching A&B engaging in their duty of reasonable care but he’s acting like a fool.  The first thing you might wonder is “WHY CAN’T WE ALL JUST GET ALONG???”  The second thing you might wonder is how does this all work together and who’s at fault when the inevitable bad thing happens.

Back to McDonald’s, I had my aha moment on these concepts at McDonald’s watching the kids on the playground.  Picture it if you will …. Adam is sliding down the slide, while Billy is climbing up the slide, while Chris is standing at the top of the play zone screaming his head off because he’s a kid, its raining & mom said no ice cream so he’s throwing the ball pit balls he carried to the top with him at Adam & Billy who aren’t paying any attention to him or each other  The inevitable happens and Adam & Billy collide and fall over the side of the slide and both break their arm (in real life there were only bumps and bruises). Who’s at fault and why? Well Adam is using the slide properly he climbed up the steps and is sitting at the top trying to go down properly.  But Adam either sees or should see Billy climbing up the slide and a reasonable person in Adam’s  place should know if he slides down he is going to hurt Billy so even though Adam is in the right, if he slides, he might have breached his duty if he knows or should know that sliding will cause Billy to get hurt.  Doesn’t Billy have the same duty to Adam, not to crawl up the slide when he knows that is not the right way? Yes Billy has to know because his mother has told him 100 times “we climb up the ladder and slide down, NOT climb up the slide and down the ladder.”  Billy has “ASSUMED THE RISK”  of getting hurt because he knows or should know that playing on the slide in this way is wrong and can cause him or someone else to get hurt.  So if its just Adam and Billy, playing on the slide and Billy sues Adam, the jury decides who’s more negligent.  If the judge or jury decides that Billy has $100 in damages from the accident and Billy was 50% at fault in the accident then Billy gets 50% of his damages ($50) from Adam.  The damage award is reduced by Billy’s percent of negligence.  However, if Billy is 51% negligent in causing his injuries then Billy can’t recover any money damages from Adam because Billy’s negligence is greater than Adam’s negligence.

Well what about Chris who was screaming and throwing the balls at Adam and Billy is he at fault in this whole mess? Maybe. If Chris’s screaming and ball throwing distracts Adam and causes Adam to slide down the slide because he was trying to get away from the balls even though he knew Billy was climbing up the slide, then Adam isn’t the cause of Billy’s harm when they collide because Chris’s actions are an “intervening cause.” An intervening cause is a set of actions that by themselves are enough to cause harm and interrupt a previous bad act to cause harm.  Here it would stop Adam from being at fault in the collision because Chris’s behavior of distraction and ball throwing was enough to cause the harm itself and it is what actually caused Adam to slide down the slide, not Adam’s disregard for Billy.  However, if Adam slides because he wants to slide regardless of Billy and Chris is throwing the balls that hit Billy and the ball throwing and screaming cause the impact to be more dangerous and cause greater harm to Billy than if either had just happened, then Adam and Chris are “concurrent causes” and the judge/jury gets to decide what percent of harm is caused to by Adam, Billy and Chris.  However, Billy still has to be less than 51% at fault total to recover any money from Adam and Chris.  A question left to another day is does McDonald’s have any fault in all of this?

Watching this scene unfold in part peaked my interest in civil personal injury law.  It also led to my family calling me a “fun sucker” because I developed a habit of saying do you know how many ways what you are proposing to do could go wrong and I won’t have anyone to sue??? But most of all this day at McDonald’s flipped a switch in my “think like a lawyer” brain to translate a complicated legal concept I had tried to understand through rote memorization into a concept I understood and could explain to you because I applied it to everyday life.  I had to look for the duty, find the breach, determine if the breach was the cause something to happen and if the harm that happened was real.  I had to watch the actions and explanations to determine who was being truthful, who was lying, what each child’s intent was and what he reasonably believed would happen based on his action.  My practice of law ironically started in the raising of children and to this day I often explain negligence to my clients in terms of these 3 kids at McDonald’s.

Leave a Reply

Your email address will not be published. Required fields are marked *