21.1 Introduction.1 Negligence is the failure to comply with the applicable standard of care. The requisite standard of conduct is usually an objective one. In other words, a party’s conduct is usually measured by an objective standard applicable to all persons. As such, subjective judgments about a party’s conduct are not relevant when assessing negligence. At the same time, consideration is given to the facts and circumstances and the risk undertaken by the actor. These factors are all considered in determining if the actor has complied with the required standard of care.
The courts have implemented this objective standard of conduct through the fictitious “reasonable man of ordinary prudence.” Accordingly, negligence is the failure to do what the reasonable person would do “under the same or similar circumstances.”2
A claim for negligence consists of either a wrongful action or wrongful inaction.3 Negligence is a relative term and is tested under facts and circumstances related to time, place, manner, or person.4 Negligence is conduct which falls below the standard...
