Most people have heard the term “negligence” but many do not understand exactly what that means.  In Nebraska, as in most states, for actionable negligence to exist there must be 1) a legal duty on the part of the defendant to protect the plaintiff from injury, 2) a failure to discharge that duty, and 3) damage proximately resulting from the undischarged duty.  The threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty.  The question of whether a legal duty exists for actionable negligence is typically a question of law dependant on the facts in a particular situation.

What does that mean?  It means that Judges decide whether a duty existed at all.  Some duties are evident; what some might call common sense.  For example, we have the duty to drive our cars in a manner that does not cause injury to others.  That duty can be violated numerous ways including texting, looking away from the road or speeding.

Sometimes there are statutes on the books which can create duties.  In Nebraska, the test for determining whether statutes create duties is:

  1. whether the statute is enacted to protect a class of persons which includes the plaintiff;
  2. whether the statute is intended to prevent the particular injury that has been suffered; and
  3. whether the statute is intended by the Legislature to create a private liability as distinguished from one of a public character.

Consideration of the Legislature’s purpose, also known as legislative intent, in enacting a statute is central to the analysis of whether the statute defines a duty in tort.  Sometimes, the purpose is in the statute itself.  Often, however, determining what the law making body intended requires looking at the transcript of the actual floor debate when a bill is introduced.