Resumo de Dilligence And Negligence - gerald.hill ,sir charles

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here.DILIGENCE, in law, the care which a person

is

bound to exercise in his relations with others. The

possible degrees of diligence are of course
numerous,

and

the same degree is not required in all cases. Thus
a

mere

depositary would not be held bound to the same
degree

of

diligence, as a person borrowing an article for his
own

use

and benefit. jurists, following the divisions of
the

civil

law, have concurred in fixing three approximate

standards

of diligenceviz, ordinary (diligentia), less than

ordinary

(levissima diligentia) and more than ordinary

(exactissima

diligenlia). Ordinary or common diligence is
defined by

Story (On Bailments) as that degree of diligence
which

men

in general exert in respect of their own concerns.
So

Sir

William Jones: This care, which every person of
common

prudence and capable of governing a family takes of
his

own

concerns, is a proper measure of that which would

uniformly

be required in performing every contract, if there
were

not

strong reasons for exacting in some of them a
greater

and

permitting in others a less degree of attention
(Essay

on

Bailments). The highest degree of diligence would
be

that

which only very prudent persons bestow on their own

concerns; the lowest, that which even careless
persons

bestow on their own concerns. The want of these
various

degrees of diligence is negligence in corresponding

degrees. These approximations indicate roughly the

greater

or less severity with which the law will judge the

performance of different classes o,f contracts; but

English

judges have been inclined to repudiate the
distinction

as a

useless refinement of the jurists. Thus Baron Rolfe

could

see no difference between negligence and gross

negligence;

it was the same thing with the addition of a

vituperative

epithet.

Diligence, in Scots law, is a general term for the

process

by which persons, lands or effects are attached on

execution, or in security for debt.

negligence n. failure to exercise the care toward

others

which a reasonable or prudent person would do in
the

circumstances, or taking action which such a
reasonable

person would not. Negligence is accidental as

distinguished

from "intentional torts" (assault or trespass, for

example)

or from crimes, but a crime can also constitute

negligence,

such as reckless driving. Negligence can result in
all

types of accidents causing physical and/or property

damage,

but can also include business errors and

miscalculations,

such as a sloppy land survey. In making a claim for

damages

based on an allegation of another's negligence, the

injured

party (plaintiff) must prove: a) that the party
alleged

to

be negligent had a duty to the injured party---

specifically

to the one injured or to the general public, b)
that

the

defendant's action (or failure to act) was
negligent---

not

what a reasonably prudent person would have done,
c)

that

the damages were caused ("proximately caused") by
the

negligence. An added factor in the formula for

determining

negligence is whether the damages were "reasonably

foreseeable" at the time of the alleged
carelessness.

If

the injury is caused by something owned or
controlled

by

the supposedly negligent party, but how the
accident

actually occurred is not known (like a ton of
bricks

falls

from a construction job), negligence can be found
based

on

the doctrine of res ipsa loquitor (Latin for "the
thing

speaks for itself"). Furthermore, in six states and
the

District of Columbia, an injured party will be
denied

any

judgment (payment) if found to have been guilty oeven

slight "contributory negligence" in the accident.
This

archaic and unfair rule has been replaced

by "comparative

negligence" in the other 44 states, in which the

negligence

of the claimant is balanced with the percentage of

blame

placed on the other party or parties ("joint

tortfeasors")

causing the accident. In automobile accident cases
in

sixteen states the head of the household is held
liable

for

damages caused by any member of the family using
the

car

under what is called the "family purpose" doctrine.
Six

states (California, New York, Michigan, Florida,
Idaho,

Iowa, Minnesota, Nevada, Rhode Island) make the
owner

of

the vehicle responsible for all damages whether or
not

the

negligent driver has assets or insurance to pay a

judgment.

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