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The Divorce Encyclopedia
Negligence


Term Definition Negligence - a term applied to a person whose carelessness or lack of attention fails to square with the assumed level of care that a person is assumed to have.
Application in Divorce The general standard of care is what a "reasonably prudent" person would have done in similar circumstances. This legal term sets an objective standard of reasonable care against the careless or inadvertent actions of another.

The doctrine of negligence "rests on the duty of every person to exercise due care" when his or her conduct may result in injury to another; thus the concept of negligence can entail both careless and reckless action as well as a failure to act in a reasonably prudent manner.

As it applies to family law, child neglect is a form of negligence. A custodial parent has a duty to care for the health and well being of the child in her custody. A parent who neglects the onset of obvious illness in the child may be negligent. A parent has an obligation to keep children at a distance from attractive nuisances that naturally draw them in, and failure to do so is negligence.

Marital torts involve negligent acts and conduct, such as those involving a sexually transmitted disease. As it applies to torts, including marital torts, negligence involves the following elements: 1) duty, which is the standard of care owed one person by another; 2) a breach of duty, a deviation from the standard; 3) cause-in-fact, which is the connection between action of one person and the consequences to another; 4) a proximate or legal causation, which is the mandatory legal connection between action by one person and consequences to another; and 5) and damage, which is the injury or loss sustained as a result of these actions.

A distinction should be drawn between intentional conduct, which is "performed by design, purpose, forethought, or resolve," such as alienation of affection, intentional infliction of emotion distress, parental alienation system (PAS), and negligent conduct, which results from inattentiveness or carelessness.

In divorce actions, marital torts may stem from intentional and negligent acts.

See Duty; Cause-in-Fact; Proximate Cause; Damage.

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