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American v English law of negligence
Quote form the article:
- Note: unless otherwise stated, this article refers to negiligence in United States law.
Well, it shouldn't! -- Tarquin 14:57 Mar 9, 2003 (UTC)
- Yes, negligence it´s a worldwide concept.
Added a reference to the Law of Obligations (yes it should be capitalized IMHO) under civil law. Obviously fleshing out the difference between civil and common law is a big project but at least this article is a little less Anglo-American in bias. Alex 17:31 Apr 21, 2003 (UTC)
I think if this article is to be about both criminal and civil negligence these areas need to be clearly separated from each other as they are completely different areas of law and do not follow the same rules or the same logical analysis. Alex756
The whole law section needs a lot of work. (anon)
I think it should be made clear that the article is about negligence in English law. References to procedures in civil law countries should be removed: tort law in civil law countries has no clear connection with the procedure in their civil court (inquisitorial v accusatorial etc.)
I am also very interested in how American law of negligence developed. Was prior to and independent of Donoghue v Stevenson? Would appreciate any tips in this regard. —Preceding unsigned comment added by Piotrnikitin (talk • contribs) 12:40, 25 January 2008 (UTC)
- It should be negligence in all jurisdictions. I think you'd find that civil law countries are not really so different (juries in the States make more difference to England than an 'inquisitorial' system makes between England and Germany), and anyway, procedure doesn't affect the substantive law. We just need to wait for an American (or someone with time) to fill out the page a bit more.
- On the American Donoghue, MacPherson v. Buick Motor Co. is a good place to start. Wikidea 19:12, 25 January 2008 (UTC)
Dear Wikidea, thank ou very musch for your directions on American law. What I was particularly interested in was whether the tort of negligence was "discovered" by the Americans before Donoghue v Stevenson or whether they have simply adopted the Enlish approach with all its elements. The knowledge of history really helps to understand the law.
On the other hand, I do not really agree with you on using this article for all jurisdictions. From my earlier comaprative law studies, I can say that "negligence" as a concept category is not used as such at least in the legal systems of the French family (France, Netherlands, Belgium). In these countries, negligence is just one of the bases on which you can prove "fault" in cases of delictual liability and is not developed conceptually or theoretically to the extent that would warrant it being put under the same heading as common law negligence. You are right, I believe, to say that Germany bears more resemblance with England in this respect, but I think "Negligence in civil law" should be a separate article, also because bringing all the nuances of the main continental legal systems into this articles will make it too long and messy. Regards User:piotrnikitin —Preceding comment was added at 17:04, 26 February 2008 (UTC)
- Negligence has been around in England for a long long time. See, e.g. Winterbottom v. Wright. But the question is whether it was dominant. It was not until the start of the 20th century that "reasonable foreseeability of harm" under the duty of care became the standard for negligence liability. And from there it's scope and application went ***woooooosssssshhhhhhh***. One reason for this is that negligence is not "interest specific" - it applies to "harm" generally but does not attach to one kind of thing (e.g. land = nuisance, trespass, Rylands; defamation = reputation) and it does not attach to one particular form of conduct, but it just says where one's duty of care is breached (e.g. deceit = words). See below for what I think of splitting articles. Wikidea 10:36, 5 April 2008 (UTC)
Besdies Yehhbut's comments (with which I agree; what is going on here?! it seems to waver in and out of English vs. American tort law) my understanding wrt why Palsgraf did not file against the package-carrier is because he could not be found (at least, so goes the hearsay passed down from my prof), not because he was not as rich as the RR company. Also, what does straw man technique have to do with it? Biogon 21:10, 3 November 2007 (UTC)
Warnings of product defects have only a historical relationship with negligence law, but, at least in the US, are part of products liability, a comparable, but completely separate type of tort. The "failure to warn" standard is only remotely like the "failure to use ordinary care" duty in negligence claims. The latter is based on what ordinary people do in the conduct of their private lives. The former is an obligation imposed by law (to provide adequate warnings of non-obvious dangers)on those who market products in the stream of commerce. For example, what constitutes an adequate warning can be established, inter alia through expert testimony, while common law negligence is a matter of determining the prevailing community standard as decided by a jury. Yehhbut 14:09, 16 February 2007 (UTC)
This article keeps getting worse as more and more folks from various jurisdictions insert their half-baked ideas. Once and for all, folks, the "implied warranty of fitness" aka product liability is not a negligence claim. The pseudointellectual delight of some contributors to this article to cite ancient cases describing origins of rules of law that have virtually nothing to do with modern tort liability and particularly with negligence may give the writers an ego boost, but are merely confusing for lay readers. Try to remember that the contributions here are supposedly intended to enhance, not diminish, the comprehension of the reader. This article should be dumped and rewritten in its entirety. Yehhbut 14:11, 8 March 2007 (UTC)
- This article has become a complete disaster. Agree with Yehhbut that it should be dumped and rewritten. Suggest the name of the new article - "Negligence in Common Law legal systems". The article should outline the features of the tort of negligence common to the main Common law jurisdictions: England and Wales, United States, Australia, Canada and New Zealand, with reference to main articles that go into more detail regarding the law of negligence in each of those legal systems(a good example of such a main article is Negligence in English Law). Many of us make a mistake of thinking that all the readers of our articles come from our own legal system or that there are no essential differences between legal systems. Trust a comparativist: this is not so! NB: Civil law jurisdictions should not in principle be included in this article because they do not operate a concept of "negligence" as separate from "tort", "delict" or "unlawful" act. E.g. under French and Dutch law, the rules for establishing liability for the intentional infliction of harm are the same as for negligence, through fault and causation. Piotrnikitin (talk) 18:14, 4 April 2008 (UTC)
- Whenever I hear somebody going "trust me I know what I'm talking about" or "trust me I'm a lawyer", I immediately distrust. Instead of writing a paragraph about why the article is a disaster, get out your books and write something to make it not a disaster! Do detailed sub-pages, summaries of cases, and link it all into this article, which is necessarily a summary of a vast area. Negligence is common to common law countries and civil law countries, and even if you do not think it's possible to have a combined article, you should forget about that and work on what you do know. Wikidea 10:29, 5 April 2008 (UTC)
Jee, I really am sorry if I had offended anyone by calling the article a disaster. However, it seems that I am not the only one who finds that its readability is getting below zero. Correct me if I am wrong, but isn't the purpose of having a talk page is to discuss such issues? You may have noticed that I have some interest in the subject and I have done some reading on it. If you can recommend me any literature that explain "the tort of Negligence" in a civil law system, I will be much obliged. The theoretical foundations of liability for negligent acts are not the same as in Common law systems and I sincerely believe it will be very inefficient to stuff them into this article, which is already bloated out of proportion. I hope that you can respect my opinion, as I respect yours. Piotrnikitin (talk) 18:35, 8 April 2008 (UTC)
About the picture, I can't find a good one, but what about a product warning label? An appropriate one would have a clear link to negligence law. Psychobabble
Gare Montparnasse accident
I suppose it reasonable to ask: was there any negligence associated with the accident? If so, what is the source; if not, why is the picture on the page?
I can see the possibility a link between "neglect" and a specialised law page: it would be the specific situation of an adult, whether parent or person in loco parentis neglecting a child in his or her care which is a well-documented crime in many jurisdictions. I find myself distinctly puzzled as to why anyone who enters "neglect" would be in the slightest bit interested to read a page on "negligence" which, more often than not, is actually about commission rather than neglect. The nearest and most appropriate page is therefore "child abuse" and I have amended the "neglect" page accordingly. I am even more confused when ":For the neurological condition, see Hemispatial neglect." also appears. What is the rationality of someone who gets to a specialised law page being interested in a non-related specialised medical page? David91 17:07, 9 March 2006 (UTC)
- According to http://en.wiktionary.org/wiki/neglect the word neglect (noun and verb) is much more general than neglect w.r.t. children, and closely related to negligence. --Patrick 22:31, 9 March 2006 (UTC)
- Well, I accept that there could be some possible overlap with situations that the law might consider to be negligent in that a failure to do what the reasonable person would do, might be neglect by the reasonable person. Further the Latin roots are the same, neg not legere choose. But as to whether a specialised law page is a better destination for the redirect that child abuse? That is more difficult. Why do we not turn neglect into a dab? That would solve the problem. We could offer fragments of sentences defining neglect and pointing to negligence, child abuse, Hemispatial neglect, and anything else that comes to mind. I will do that. David91 01:51, 10 March 2006 (UTC)
Hmmm, yes well i dont reallt know - perhaps it is negligence - perhaps not! does it even matter if we're honest with ourselves??? Seriously - it's in the past and it can do us no more harm (or happiness).
- Ok, that's fine.--Patrick 11:46, 10 March 2006 (UTC)
Was the defendant the actual cause of injuries sustained by the plaintiff/claimant. A "But-For Test" is generally employed which has three elements: (1) Identify the loss or damage sustained by the plaintiff/claimant; (2) Identify the specific conduct alleged to be the cause of that loss or damage; (3) Demonstrate that the specific loss or damage would not have occurred "but for" the specific conduct of the defendant. Minority test is a substantial certainty (less than 51%) that defendant was the actual cause of the plaintiffs injuries. American jurisdictions use loss of chance in medical malpractice cases, which, rather than asking if there is a 51% chance that defendant was the cause of the injury to the plaintiff, asks if the defendant deprived the plaintiff of chance of recovery from his injuries. This approach prevents doctors from escaping liability in cases where the plaintiff (patient) had a less than 51% chance of recovery before the doctors negligence.
- I am attempting the impossible on this page: namely to keep it to principles that are common to all jurisdictions even though that often means a level of generality that is unsatisfying. I have never heard of a minority test and do not really understand it from your description. Further and in any event, it is NPOV because it seems to proceed on the basis that doctors ought not to escape liability. You should expand and redraft in a neutral tone and then place it in a U.S. page (e.g. calculus of negligence or proximate cause. David91 02:58, 11 March 2006 (UTC)
Agreed. This page should be about general negligence, not just US negligence. --126.96.36.199 12:07, 3 May 2006 (UTC)
- The article, from the outset contains confusing conflations of terminology and deserves a scholarly rewrite. My recent edit to the subsection on damages removes the assertion that, contrary to definitions in earlier subsections, punitive damages are awarded in negligence claims. The very introduction to the subject of "negligence" is misleading, I comment by --INTERLINEATION--, below
- "In the common law, negligence is the basis of most non-intentional torts or wrongs when loss or damage is caused to an individual by the nonfeasance, misfeasance or malfeasance (i.e. a failure to act, an inadvertent action, or an intentional--NO, IN COMMON LAW, INTENTIONAL WRONGDOING GOES BEYOND THE TORT OF NEGLIGENCE-- action) of another. In civil law systems--HERE THE WRITER IS APPPARENTLY REFERRING TO STATUTORY CIVIL LAW IN SOME WESTERN NATIONS, AS OPPOSED TO COMMON LAW DECISIONS WRITTEN BY JUDGES DECIDING CIVIL, NOT CRIMINAL, CASES IN OTHER WESTERN NATIONS-- such those found in continental Europe, Quebec, and Puerto Rico, negligence is classified as a form of extra-contractual responsibility, --MAYBE SO, BUT THE CONFUSION ARISES WHERE THE TEXT SUGGESTS THAT COMMON LAW AND CIVIL LAW NEVER COINCIDE. NOT TRUE. IN COMMON LAW JURISDICTIONS, "CIVIL LAW" IS A TERM USED MERELY TO CONTRAST WITH CRIMINAL CASES AND INCLUDES SUITS "AT [COMMON] LAW," OR "IN EQUITY," OR UNDER STATUTORY AUTHORITY--sometimes called a quasi-delict in distinction to the more willful delicts within the conceptual framework of the law of obligations. The detailed rules are not the same as those set out below under the Anglo-American common law."
Yehhbut 16:36, 13 August 2006 (UTC)
The latest addition to this garbled article aggravates rather than elucidates the sloppiness of the whole. It says of the word "negligence":
>>It can be defined as a conduct that falls below the standard established by the law for the protection of others against unreasonable risk of harm.
Since the writer is clearly limiting this "definition" to legal responsibilities rather than the more generic concept of carelessness, this definition is circular. It merely asserts that legal negligence is what the law defines as negligence. Further, the clumsy verbosity is needless. It starts with the dreadfully ambiguous passive voice: "It can be defined as...". Defined by whom? Certainly not the law, which has definitions, but this ain't one of them.
One of the more common legal definitions is "a failure to use that degree of care which an ordinarily careful [prudent] person would have used under the same or similar circumstances.
Yehhbut 14:58, 17 September 2006 (UTC)
Gross Negligence redirects here and is not addressed at all in the article.
missing important info
An expert should please add this and relevant info in the approriate way and place: Special damages may be awarded for pain and suffering and mental or emotional distress. http://www.legal-info-legale.nb.ca/showpub.asp?id=2&langid=1 --Espoo 10:21, 30 September 2006 (UTC)
- It's there, under damages. See the tort section damages (general damages) for more info. Psychobabble 11:15, 30 September 2006 (UTC)
I hope the changes are okay. This can be a good page if it gets a little more schematic and ordered.
It is nothing like a good page. It is a collection of comments. The latest definition I inserted today, but forgot to sign in first. It will necessitate renumbering the "principles" somebody thinks are essential. For the purpose of the lay reader, this article does more to confuse than to elucidate.
Elements of Negligence
I think cultural differences explain the confusion!
1. Proximity in English law is part of a duty of care, and pops up in psychiatric injury and pure economic loss - it refers to some kind of relationship between parties; but in the U.S., as it seems, it's a byword for what we call remoteness
2. Damage (or better put, harm?) is kind of assumed in English Law - it's the breach of a duty that matters, because there may be no 'damage' as such at all (e.g. breach of a statutory duty, like antitrust/competition laws on tying as a vertical restraint) and we only call something 'harmful' because that's what the law says it is, if you see. If the damage bit must be put back in,
- (a) can there be some references to cases on it?
- (b) if references are found, can it go underneath duty, breach, causation and remoteness, please? It'll make us happier in England!
3. Is it a good compromise to split the causation bits into factual and legal causation, as I've said?
- I re-added the section of "Damage" with references and put it "underneath duty, breach, causation and remoteness". It's OK to split the causation into factual and legal causation. --Neo-Jay 13:54, 27 November 2006 (UTC)
Wagon Mound No. 2 confusing
I am very confused by the discussion of Wagon Mound No. 2 (even after reading the individual article on that subject, as well as the Wagon Mound No. 1 article): To me, as a layman, it is counter-intuitive that the wharf-owner's intervention would lead to a reduce liability for the ship-owner. On the contrary, by doing so he would have removed his own potential a priori liability (seeing that it was reasonable for him to expect a danger, and he was assured to the contrary by a supposed specialist), while increasing the liability of the ship-owner (who could possibly have been unaware of the potential interaction between oil and wharf-workers, or have assumed that they would "naturally" take extra care when seeing the oil).
I would strongly suggest that this section is elaborated, so that the underlying reasoning and principles are more obvious to the layman.
Duty of Care First Paragraph
"The case of Donoghue v. Stevenson  illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. The Pursuer, Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer, a certain Stevenson in Scotland. While drinking the drink, Donoghue discovered the remains of an allegedly decomposed slug. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Andrew Smith."
- An edit on 13 January 2010 changed "a direct action against the manufacturer, David Stevenson" to "a direct action against the manufacturer, Andrew Smith" without explanation.
- There is no source supporting the change.
- No Andrew Smith is named in the article for Donoghue v Stevenson.
- This directly contradicts this line: "The beer was supplied by a manufacturer, a certain Stevenson in Scotland."
- This appears to be an error which has stood for far too long and I'm reverting the name. —sroc 💬 01:05, 14 November 2013 (UTC)