The term negligence can apply to two things. It can apply either to the standard of care or it can apply to the tort of negligence.
And so the tort of negligence occurs when you have a duty of care, you breach the duty, that breach is the cause in fact and proximate cause of some damage that results. And so one area where negligence is different from the intentional torts is that negligence requires actual damage to result. Some of the torts, you can receive nominal damages if actual damage does not result. But in negligence, you have to have some actual consequential damage that is realized.
Now the second definition of negligence is on the standard of care. With the standard of care, you really have three separate standards that are going on. The reasonable and prudent person standard, which is primarily an objective standard. You have the child standard which is primarily subjective, although it has a little bit of an objective component.
And then for professionals such as lawyers and accountants, you ask what the custom is in that profession, which is interesting because for the reasonable and prudent person standard generally, you don't ask what the custom is, so you don't ask what the custom is of the average driver. Now, the custom may be relevant as an evidentiary matter to establish what a reasonable and prudent person would do. But in some cases, customs can lag. Perhaps a particular occupation fails to adopt a safety device that the profession should use. And so, when the custom lags, in most cases, what does a reasonable and prudent person do in the circumstances? And the custom, again, may be probative for its evidentiary value, but it's not dispositive.
For certain learned professions, however, the standard of care is that of the custom in the field. And so, in the medical realm, you ask what is the custom of physicians in that discipline. And in some cases, in some jurisdictions, it's a local standard of those who are practicing in that or a similar locality.
And then, in some cases, it's a national standard. So if you had a neurosurgeon, you would not ask how a neurosurgeon would practice in that, or a similar locality. You would ask what the custom was in the field of neurosurgery generally. For lawyers and doctors, and Accountants and other learned professionals, the standard of care is the custom in the field, which is different from the ordinary reasonable and prudent standard, where custom has evidentiary value, but it's not itself dispositive of what the standard should be.
So negligence can mean either the failure to live up to a certain standard of care or it can mean the tort which requires duty, breach, cause and fact, proximate causation, damages.