Now let's talk about negligence. In this lesson, we're going to do a brief introduction towards general, and then we'll delve into negligence and help you understand this broad concept in the area of tort law. We'll spell out the various elements of negligence and then outline a few defenses to negligence that may be available to you if you're on the other side of a negligence claim. First, what is a tort? A tort is a wrongful act that results in some injury to another and it's subject to civil legal liability. The injury that is part of a tort claim can be an injury to someone's person, their property, or even their reputation. The liability that may result from a tort claim is usually civil in nature, meaning there's some money damages or some equitable remedy that a court will fashion in order to make the plaintiff in the case hole. Here are some examples of torts; false imprisonment, personal injury, trespassing, infliction of emotional distress, defamation, interference with prospective business advantage, or negligence. We're going to talk about negligence today. Negligence is conduct that falls below a reasonable standard and it creates an unreasonable risk of injury to another. Is conduct that falls below a standard that's deemed reasonable, and by falling below the standard of conduct, you create an unreasonable risk of injury to someone else. Now, let's go through the elements of negligence so you can get a good understanding of where the legal risk may be for you as a business owner. The first element of negligence is duty. The tortfeasor, which is the person who is being accused of negligence, has to have had a duty to the person who was injured. A legal duty to that person. Now, there are several types of relationships that impose a legal duty. I want to talk about three that's most relevant to you as a business owner. The first is a landlord and tenant. As a landlord, you have certain responsibilities to your tenant. You have a legal duty and in a lot of respects, and vice versa, as a tenant, you have legal duties to your landlords. If you are in the process of leasing a facility for your business operations or you are already leasing a facility for your business operations, you will be in this landlord-tenant type of relationship where certain duties are imposed upon you depending on what side of that equation you're own. Also, as an employer, you have a legal duty to third parties. You have legal duty to your employees. This is also an area where you should be aware of as a business owner. The legal duties that are imposed upon you as an employer. Also, and this is to a lesser extent if you're in the tech space, or if you're not in the professional space like a lawyer, or an accountant, or a doctor, or a clergy, but professionals have a legal duty to third parties. As a lawyer, I have a legal duty to my clients. I can't fall below a certain standard of conduct in the profession vis-a-vis my clients. If your startup or your business is in the professional space, you want to be sure you understand what duties the law imposes upon you as a professional. The next element of negligence is breach. That essentially means that that duty that you owe to the potential plaintiff in the case, that you breached that duty. You've fallen below the standard of care that's associated with the duty that you have to the plaintiff. The next element of negligence is causation. There are two forms of causation that you should be aware of because sometimes this gets a bit confusing to non-lawyers. The first is what we call but for causation. The way to think about but for causation is the injury would not have occurred, but for your negligence. It's the actual cause of the injury. If your conduct was not the actual cause of the injury, then you can't be held liable for negligence. The other type of causation, sometimes we call it legal causation or proximate cause. This means that the injury had to be foreseeable in light of the conduct. Even if it's a but for cause, even if somewhere along the chain of events this injury occurred as a result of a conduct along the chain of events, if it's so attenuator, or based on that conduct, if the actual injury is so far away from the actual conduct itself, it may be outside of the proximate causation such as that we will not hold it as a legal cause of the injury. You want to have a good understanding of but-for causation and legal causation so you can know whether your conduct will make you liable for negligence. Then after you've established that there was a duty, the duty was breached, and that it was both a but-for cause and a proximate cause of the injury, then there must be some type of loss or injury in order to round out the elements for negligence. A bit about standard of conduct. A standard of conduct is a reasonable person standard. It's an objective standard. It's not how you thought you should have behaved subjectively, but it's how a reasonable person under the same or similar circumstances would have behaved in that scenario. That's the standard that courts use when deciding whether your conduct fell below the standard of care that's required under the duty. Then let's talk about negligence per se. This is a shortcut to establishing negligence. Negligence per se typically comes into play when there's a law or regulation in place around a particular conduct and you are not complying with that law. If there's a regulation around defective products and you don't comply with that regulation, you would have established negligence per se. Now, the flip side of that is there is a regulation around a particular type of conduct and you are complying with that. That's not a defense to negligence. While that may help you, and you can argue that that's not going to say that there's no negligence just because you complied with the regulation. But be wary of the flip, which is if you don't comply, you will be deemed to have committed negligence per se. To that note, you want to make sure you understand regulations or laws that are in the space in which you are operating so that you're fully complying with those laws and you won't run into a situation where you're being deemed negligent per se. Now, here are some defenses to negligence. Somebody's defenses are available in various states. Other countries around the world may have the same or different defenses, so you want to consult with a lawyer so you understand what defenses may be available to you if you are a defendant in a case dealing with negligence. The first is contributory negligence and comparative negligence. This essentially brings both parties into the game. It takes into account any negligence on the part of the plaintiff or other actors in the case. Causation is another defense. We talked about but-for causation and legal causation. If one of those two are missing, that can be a strong defense to a negligence case. Then if there's no real injury, then there cannot be a negligence claim. You want to make sure the plaintiff has established that there was in fact an injury in order for there to be about negligence claim. In summary, torts can pose some serious legal exposure for your company. It's a big, broad umbrella of the law with a lot of avenues for a plaintiff to attack your conduct that's being conducted by your business. Negligence occurs when that conduct falls below a reasonable standard and it causes injury to another person. Remember, employers can be held liable for the torts committed by their employees when they're acting within the scope of employment. You want to be sure that you understand those risks and that you put proper mechanisms in place to mitigate them.
