Study On Special Factors Of Negligence Determination In Tort Law

Negligence refers to the fact that the inflictor should or can anticipate the consequences of his or her actions without foreseeing,or believe the the consequences of actions foreseed can be avoided by credulity.With the change of the orientation of modern tort law from the law of interest to the law of value,the criteria of negligence determination has also undergone the evolution from subjective to objective.In the sense of imputation,the core of negligence does not lie in the inflictor's abnormal state of negligence or credulity,but in the inflictor's violation of the duty of care to others and causing damage to others.The objective criteria of negligence determination is based on the duty of care of a reasonable person,which means a reasonable and prudential person who pays attention to avoid or minimize the risk in the same or similar situations.The criteria of negligence determination is abstractive and deviate from the nature of the negligence,which means it needs to be amended by subjective fine-tuning.After introducing the special factors of individuals into the reasonable person structure,the inflictor is required to reach the level of attention of a reasonable person with the same characteristics.The important theoretical problem arising therefrom is how to judge and apply the special factors in the objective criteria of negligence determination.When the specific characteristics of the actor or the special circumstances of the scene make the actor's ability to foresee or avoid the consequences of damage unable to reach the standard that ordinary people can reach,or significantly higher than ordinary standards,and this factor can be perceived by others to generate reasonable trust,the factor can be taken into account as a special factor in the criterion of reasonable person and be considered in the determination of negligence.Typical special factors in the rational human structure include age,physical disability,mental disability and professional knowledge and skills.For minors,the standard of conduct refers to the care which other minors with the same age,experience,and intelligence should have in a similar environment in order to avoid negligence.And it is needed to decide whether the minor has the ability of negligence before deciding whether he has negligence.The exception of this special rule is that when minors engage in dangerous activities generally involving adults,the objective and reasonable human standard is applied to them.They should take the behavior of reasonable adults under the same circumstances.If the actor has some physical defects,the standard of behavior he is required to meet is the standard of reasonable person with similar physical defects.The requirement of this standard of reasonable person is based on the reasonable expectation of the society for disabled people to act like the general disabled.Their own defects determine the scope and extent of the duty of care.For the impact of mental defects on the criteria for negligence determination,a subjective adjustment of type should be made.People with permanent mental illness,knowing the possibility of their own mental disorder,should be required to perform their foresight and avoidance obligations for their behavioral consequences in the same situation as normal reasonable people.The condition of sudden mental disorder should be included in the specific factors of rational human structure,so long as the actor fulfills the standard of conduct that a reasonable person with same sudden mental disorder will implement in similar situations,there is no negligence in the occurrence of the damage result.In addition,professional knowledge and skills can also be special factors in judging whether a duty of care is violated or not,which is mainly manifested by professional appearance,typically recognized as the professional duty of care.Typical special factors in the determination of reasonable person scenarios include emergency situations and dangerous activities.In emergencies,we should avoid the excessive requirement of reasonable person's behavior choice in similar situations,and consider the influence of the actor's tense or confused psychological state.In dangerous activities such as competitive sports scenarios,the determination of negligence should be based on the rules or practices of the competition,as well as the time and field of the competition.The actor just have to take the duty of care that a reasonable person should have in a similar special environment.