Negligence is the most significant of all of the torts. The tort of negligence occurs when an individual causes damage to another by a non-deliberate breach of a duty owed to that other. That is, the elements of the tort of negligence are duty, breach, causation, and damages.
In other words, negligence is the failure to use care which a reasonable and prudent person would use under similar circumstances.
It must be established that a duty of care is owed by the defendant to the plaintiff and that there has been a breach of that duty. In establishing whether a breach has occurred a court will need to determine the standard of care owed.
The cause of action is not complete unless it is established that the plaintiff has suffered damage as a result of the breach.
A finding of culpable negligence is a determination that the harm due to negligence could have been prevented.
Negligent homicide is a determination that a culpable and deliberate neglect caused preventable death. Deliberate withholding of care for the conscious purpose of ending life is murder. See Terri Schiavo
In criminal cases involving negligence, courts will apply the Hand Test. This test balances the harmful effects of the negligence against the cost of preventing the harm, divided by the probability of preventing the harm. Where the Hand Test finds that the risk of harm outweighs the equitable likelihood of finding restitution, Due Process requires acquittal.