Every person is responsible for injury to the person or property of another, caused by his or her negligence. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person is negligent if he fails to act as an ordinarily prudent person would act under the circumstances. What constitutes negligence will depend on the facts of each individual case. Generally, a trier of fact needs to determine what a "reasonable" person would do or not do in the given situation.
In some instances, negligence is defined by statute, referred to as negligence per se. In such cases, negligence is determined by failure to comply with the statutory requirements. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behavior standards that it is negligent on its face.
Some acts are considered inherently negligent, with no requirement to prove the negligence was known or intended. For instance, when a doctor leaves a sponge inside a patient, it is inherently negligent. In appropriate cases, affirmative defenses such as contributory negligence, etc., may also be raised by a defendant.
After determining whether or not negligence exists, a trier of fact may decide whether there were any applicable defenses to negligence, such as assumption of the risk, etc.
Courts often construe general indemnity provisions as granting protection to people only from damages caused by their "passive negligence." Passive negligence is usually defined as mere failure to act, such as failing to discover a dangerous condition or to perform a duty imposed by law. "Active negligence," however, occurs when someone has personally participated in an affirmative act of negligence, known about or complied in negligent acts, or failed to perform a precise duty which he/she agreed to perform.
