The Concept of Due Care

In order to avoid a claim of negligence, a defendant must prove that they either showed the appropriate amount of due care for the safety of others, or that they were not required to show due care given the situation.

So how do you determine what the appropriate amount of due care is? In general common law says that the appropriate amount of care is the amount of care that a normal person would exercise under normal conditions in order to avoid an injury to others. By using this test, it is almost always very easy to decide whether someone was negligent or not. However, the details of a given situation can confuse matters. Slip and fall cases are a great example of this. People who own commercial property where the public often visits, such as a supermarket, should take care that their premises is safe. When it snows outside the driveway and sidewalks associated with the property can become very slippery. It is the owner’s duty to make sure that the public can traverse those areas safely. But, what if a surprise storm happened? What if the policyholder has people on duty twenty-four hours a day that were constantly attempting to maintain the property? In addition, what if the weather conditions are simply far too hazardous to be able to control the amount of snowfall? In a case like that, it may be said that Mother Nature is contributing more to the issue than the property owner is. You could also say that any claimant that ventures outside during those conditions is assuming a certain level of risk. When there an incident was partially caused by both the plaintiff and defendant, the legal solution is to allow for something called comparative negligence.

Comparative negligence means that both parties bear some responsibility for an incident. As stated above when a claimant knows of dangerous conditions but engages in an activity that they know is inherently dangerous anyway, there is a fair bit of comparative negligence that can be assigned to them if they become injured. Accidents that happen on ski slopes are a common example of this. Those who engage in snow skiing must know that there are certain dangers involved with the activity of snow skiing. It is this Assumption of risk that can mitigate the negligence assigned to a property owner such as the owner of a ski resort.

Each state handles negligence cases differently. In a comparative negligence state, the claimant can be held responsible for a percentage of the responsibility for an incident. This would then deduct the responsibility percentage from the defendant. As an example if a policyholder was found to be 50% negligent and the claimant was found 50% negligent. In that case, the plaintiff’s damages would be reduced by 50%.

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