where an intentional tort is about someone doing something they weren't supposed to do

negligence usually happens when someone

doesn't do something they were supposed to do

there are 3 parts to a negligence case

duty breach and causation

first, duty... heh, "duty"

this is your duty not to expose other people to unreasonable risk of harm

the test for whether what you're doing is unreasonable is

whether a reasonable person in your situation would do the same thing

your situation include your basic physical attributes

but usually not your mental attributes

children are compared to other children except when they're doing something

usually only done by adults

so basically it's up to the court to decide reasonableness

they have to decide if what you did was too crazy or negligent

if they do, you've breached your duty if they don't, you're off the hook

they can take into account what you were doing and why when deciding whether or

not you were being reasonable and some actions are more reasonable than others

they can also take into account the way things are usually done to see if you

were just following the customary practice

sometimes you can make yourself seem more reasonable guy warning other people

of the danger involved with whatever you're doing

some warnings are a little more effective

while others won't do you much good

the court may not even have to decide whether what you did was reasonable

if it was also against the law

there's a rule called negligence per se that says if what you did was against

the law and you do it anyway and

you hurt someone you've automatically proven that you acted unreasonably

the one catch is that the law has to be designed to deal with something

reasonably close to harm you caused

so breaking a law against using guns in certain places and ending up shooting

someone would count because the law

was written to protect people from being shot

breaking a law against driving without your lights on at night and then your car

exploding would not count even if it hurt someone

because that's not the kind of thing the law was designed to deal with

incidentally a malpractice suit

where you sue a professional like a doctor or a lawyer for bad service

is in many ways just a fancy negligence case, the difference is in the duty

where an ordinary person just owes you the duty of acting reasonably

to keep you from being hurt

when you pay a professional they have the duty of doing at least as good a job

as a minimally qualified member of their profession

you'll note I said minimally qualified they don't have to be the best

they don't even have to be in the middle they just had to be good enough to be a

doctor even if that means they were the bottom of the class

so now on to breach

this part is really easy. if there was a duty did you break it?

did you put someone else an unreasonable risk of harm?

next is causation. did you breaching your duty cause harm?

it's always nice when you do something bad and it doesn't hurt anyone

but don't push your luck and just hope nothing bad happens

if you do breach a duty and something bad happens

the court will examine the facts

the test that usually applies is called the "but for" test

this just asks would the harm not have happened "but for" the person being sued

having breached their duty?

if they had kept their duty would the bad result have been avoided?

after all there are times you do something bad

but it's not the reason something bad happens

sometimes your negligence can even

put you on the hook for

someone else's negligence

if you put someone in an unreasonable risk of being harmed by someone else

you might both be sued even though you didn't directly hurt anyone

and there you have it