Personal Injury, Probate, Employment, & Complex Litigation


What is Negligence

We as a society always use the term “negligent” but most do not know what the word actually means. The mother at the Cincinnati Zoo was consistently called negligent because she allowed her child into the gorilla exhibit which led to the gorilla’s death. But was she actually negligent?

Negligence is a deceptively complex simple concept. While this blog post is meant to cover the basics of negligence, there are interesting permutations of negligence analysis that may apply to your specific case, as a result, if you believe that you may have a negligence cause of action, you should contact an attorney to discuss the matter further.

With that said, the four basic elements are as follows:

  1. Duty;
  2. Breach of Duty;
  3. Causation (both actual and proximate); and
  4. Damages.

Generally speaking, any conduct or activity that you do that affects or interacts with someone else, or the greater outside world triggers a legal duty for you to act as a reasonable person would in similar circumstances. Think of it as a social contract to act as a typical member of society, and when you deviate from that standard you can be held responsible.

So to use the example of the Cincinnati Zoo, the mother had her child at the zoo, (depending on who you believe) the mother looked away from the child only briefly before her child climbed into the exhibit. So what was her duty? While the general rule is that each person is responsible for their own actions, that just isn’t true with children for obvious reasons, their parents can be held liable if the child did negligently looked after.

So in this situation, the mother at the zoo had a duty to watch her children to ensure that they did not cause destruction to any property (which is how animals are viewed by the law). Was her looking away for brief moment be considered a breach of duty? The answer is maybe. But remember, we have to look at what a reasonable person would do in a similar situation. In this case the woman was charged with the care of 4 children. It is impossible for someone to give complete focus to all of the children at the same time. So, really, it likely comes down to how long she was not paying attention to the problem child. If it was 5 minutes then it was likely a breach, if it was 10 seconds, then it would be a bit unreasonable to say that she did not act as a reasonable person.

Assuming that there was a breach of duty, we then must look at whether the breach was the cause of the incident. There are two types of causation, actual and proximate. For the most part when we talk about actual cause we apply the “but for” test. As in, but for the mother’s breach of duty would the child have gotten into the gorilla enclosure. Most negligence scenario’s will satisfy this, as does this case. Whether a breach is the proximate cause we look at whether it was reasonably foreseeable that the breach would cause the harm that it did, or put another way, is the nexus between the breach and the harm too attenuated. In this case it is reasonably foreseeable that if you do not keep track of your children around a gorilla enclosure, your children might get in to the gorilla enclosure. But to give an example in which proximate cause is perhaps not present: Your car’s check engine light comes on, you don’t get the maintenance, as a result when you are driving one day next to a person riding a horse, your car backfires startling the horse, knocking the person off who then breaks their neck. It is not reasonably foreseeable that not getting routine maintenance would cause your car to startle a horse, therefore there would be a break in the causation link.

The final negligence analysis is the simplest, was there damage? In this case, if after falling into the enclosure the gorilla picked up the child and gently handed him back to his mother (or more likely immediately killed the child) then the gorilla would not have died and there would not have been any damage. If there is no damage then there is no negligence