In personal injury cases, there generally must be negligence for a finding of liability. There are exceptions for strict liability offenses. There are also some cases where negligence may be implied from the circumstances under the doctrine of res ipsa loquitur which means the facts speak for themselves.
The first exception for strict liability offenses are generally limited to products liability claims. For example, a manufacturer might under some circumstances may be held liable for a defective product that causes harm even where there is no finding of negligence. The second exception under res ipsa loquitur might include what is surprisingly common in medical malpractice cases where an instrument, sponge or other surgical supplies are left in a patient. Obviously, this would not happen in the absence of negligence so negligence is implied.
In all other cases, for liability to attach, the defendant must be found to have acted negligently. Under the New Mexico jury instructions, negligence is defined as involving an “unreasonable risk of injury … which such a person, in the exercise of ordinary care, would not do.” Keep in mind that both action and inaction may constitute negligence. In the case of inaction, the jury instruction states that there must be a failure to do something that one has a duty to do and which a reasonable person would do in the exercise of ordinary care.
As with all things legal, the definitions and instructions raise a host of other issues. First and most obvious, what is “ordinary care”? The New Mexico Jury Instructions define ordinary care as the “care which a reasonably prudent person would use in the conduct of the person's own affairs.” The instruction goes on to state the obvious that “ordinary care” is dependent upon the circumstances. It states further than as the dangers of the situation go up so too does the duty of care.
The other obvious issue that arises is whether or not there is a duty at all. A person is, with few exceptions, not required to do anything that he or she has no duty to do. In fact, taking action where no action is required may in itself create duties of care. The most common situation is the aid of someone who is injured or otherwise in danger. In other words, if you come to the aid of another, you must not do more harm than good. There are Good Samaritan type laws that protect the do-gooder in some situations but these too are limited. This of course raises a host of different topics and debates as to why the law would in any way discourage the assistance of those in danger.
In short, even the seemingly simple issue of “negligence” can become quite complicated. Likewise, the issue is often hotly contested since without it there can be no liability (except in those limited situations above). In addition, the dispute may not just involve dispute over the negligence of the defendant but the comparative negligence of the plaintiff. This too leads to even more questions.
If you believe you or a loved one has suffered serious personal injury or wrongful death as the result of the negligence of another, it is important to consult with an experienced personal injury attorney as soon as possible. These cases have deadlines (often short deadlines) that must not be missed. In particular, and of utmost concern, the first important deadline in claim against the government runs in as little as 90 days.