Book excerpt: negligence and malpracticeNegligence is a failure to follow the degree of care that would be followed by a reasonably prudentperson in order to avoid foreseeable harm. A person can be negligent if he or she acts with less care than a reasonable person would use under similar circumstances.Bob drove a car on a country road at 35 miles an hour. The maximum speed limit was 45 miles anhour. He struck and killed a cow that was crossing the road. The owner of the cow sued Bill for thevalue of the cow. Bill said that since he was not driving above the speed limit, there could be noliability for negligence. Was this defense valid? No. A person must at all times act in the manner inwhich a reasonable person would act under the circumstances. The fact that Bill was driving withinthe speed limit was only one of the circumstances to consider. The weather or the condition of theroad may have made it unreasonable to drive at 35 miles an hour. Driving slower than the speedlimit does not in and of itself prove that the driver was acting reasonably.The reasonable person standard varies in accordance with the situation. The degree of care required of a person is that which an ordinarily prudent person would exercise under similar circumstances. This does not necessarily mean a degree of care that would have prevented the harm from occurring.The elements required to establish negligence are: the presence of duty; a voluntary act or failure to act (an omission) that breaches the duty; proximate causation of harm; and damage (i.e., the breach of duty causes harm to the plaintiff).Torts involve duties created by law. Just because someone is hurt does not mean that someone elsemust pay for the harm. There must have been a duty which has been breached. A plaintiff will notbe allowed to recover from a defendant if the defendant did not breach a duty that was owed to the plaintiff. For example, if a burglar breaks into my house and trips over an item of furniture, I am not liable to the burglar because I had no duty to him. However, if a guest in my house trips over a piece of furniture, I may have a duty to that guest. The breach of duty must result from a voluntary act or failure to act.In order for someone to be legally responsible for damage, it is necessary to show that the wrongful act was the proximate cause of the harm. The injury must be shown to be the natural and probable result or consequence of the alleged act of negligence. The plaintiff must prove that the defendant's negligence proximately caused the Plaintiff's injury. There may be more than one proximate cause of an accident.The final element of negligence is damages. A plaintiff may recover monetary damages tocompensate the plaintiff for economic losses such as lost wages and medical expenses. A plaintiffmay also recover non-economic losses such as for pain and suffering. The former are claimed on anormal accounting basis, and the latter are at the discretion of the judge.(7) MalpracticeMalpractice is a failure by a physician or other professional to use the skill and care that othermembers of their profession would use under similar circumstances. When an accountant, doctor, attorney, or some other professional contracts to perform services, there is a duty to exercise skill and care as is common within the community for persons performing similar services. Failure to fulfil that duty is malpractice.(8) NuisanceNuisance is a civil wrong, consisting of anything wrongfully done or permitted that interferes with or annoys others in the enjoyment of their legal rights. It is anything that annoys or disturbs the free use of one's property or that renders its ordinary use or physical occupation uncomfortable.