decisions the Court had begun to read some of the provisions of the BILL OF RIGHTS into the FOURTEENTH AMENDMENT, thereby making these rights applicable to the actions of state gov- ernments as well as the federal government. Hughes stated that there was “no doubt” that freedom of the press and freedom of speech were protected by the Fourteenth Amendment’s due process clause against actions by state and local governments. However, these freedoms were not absolute, and the state could punish those who abuse these freedoms. Chief Justice Hughes dismissed “mere errors” by the trial court and went to the constitutional issues. He pointed out that the gag law did not seek to redress individua l wrongs, such as libel ag ainst the police chief or mayor. These officials remained free to sue Near for libel and extract damages from him for his defamatory statements. Instead, the gag law was meant to protect the “public morals” and “general welfare” of the community. The law was in part troubling because the PROSECUTOR did not have to prove the falsity of the charges in the newspaper. Moreover, the defense of truth w as limited by a showing of good motives and justifiable ends. The Minnesota court made these points clear when it stated that there is “no constitutional right to publish a fact merely because it is true.” The Minnesota statute also troubled the majority because it protected public as well as private citizens. Charges against public officials “by their very nature, create a scandal.” Another concern was that the object of the statute was not punishment “in the ordinary sense of the word” but the suppression of the newspaper. Therefore, a publisher who ignored the law and the court order in order to continue to expose official co rruption will be shut down by the state. A publisher who seeks to continue publication must bow to official CENSORSHIP and produce a newspaper that is not “malicious, scandalous, or defamatory.” Having laid out the features of the law and the Court’s initial concerns, Hughes reviewed the history of freedom of the press in England and quoted approvin gly from Blackstone that liberty of the press consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published. Hughes concluded that this principle had been honored since the birth of the Republic and that there had been “almost an entire absence of attemp ts to impose previous restraints upon publications.” Public officials must have their actions subject to public investigation and criticism. If the charges are false these individuals may sue under libel laws. Only in exceptional circumstances should the government be granted a prior restraint. Justice PIERCE BUTLER,inadissentingopinion joined by Justices GEORGE SUTHERLAND,William Van Devanter, and JAMES MCREYNOLDS, criticized the Court for broadening the scope of freedom of the press. Moreover, the Court’sdecision had violated principles of FEDERALISM by using the Fourteenth Amendment to overturn a state law . But ler also contended that the action of the law did not constitute a prior restraint. Once the court concluded that writings were malicious, the state’ s POLICE POWER could be used to prohibit many types of questionable expression. Near was a landmark case because it applied the First Amendment’s freedom of the press and freedom of speech provisions to state govern- ment actions through the Fourteenth Amend- ment. In addition, the case announced a principle that has defined freedom of the press. Absent exceptional circumstances, editors and publishers know they are free to print their stories about public officials without fear of retribution through state censorship. The decision also proved important when national security was used as a justification for restraining the publication of newspapers. In the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 5. Ct. 2140, 29 L. Ed. 2d 822 (1971), the Nixon administra- tion sought to prevent the New York Times and the Washington Post from publishing excerpts from a classified study on the history of U.S. involvement in Vietnam. The administration contended that such publication would hurt national security interests. The Supreme Court rejected this argument, ruling that the govern- ment’s efforts to block publication amounted to an unconstitutional prior restraint. However, the Supreme Court, in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 5. Ct. 2791, 49 L. Ed. 2d 683 (1976), held that in exceptional circumstances, a court may restrict news coverage of a criminal case. However, these restrictions must be narrowly tailored, and they must not unduly restrict the right of the press to inform the public. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 238 NEAR V. MINNESOTA FURTHER READINGS Friendly, Fred. 1981. Minnesota Rag: The Scandal Sheet that Shaped the Constitution. New York: Random House. Meyerson, Michael I. 2001. “Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint.” Mercer Law Review 52 (spring). “Symposium: Near v. Minnesota, 50th Anniversary.” 1981. Minnesota Law Review 66 (November). CROSS REFERENCES Censorship; Freedom of the Press; Freedom of Speech. NECESSARIES Things indispensable, or things proper and useful, for the sustenance of human life. Traditional law required a husband to support his wife during their marriage irrespec- tive of the wife’s own means, her own ability to support herself, or even her own earnings, which, according to the Married Women’s Property Acts passed in the mid–nineteenth century, she could do with as she pleased. The wife had no corresponding du ty to support her husband. A husband owed the same support to the couple’s children. He had the legal obligation to provide “necessaries” for his w ife and children, which encompass food, clothing, lodging, health care, education, and comfort. Modern FAMILY LAW is now gender-neutral: husbands and wives have an equal and mutual obligation to provide necessaries. As the Su- preme Court of Florida said in 1995: “Because constitutional considerations demand equality between the sexes, it follows that a husband can no longer be held liable for his wife’s necessaries.” Courts rarely let themselves be involved in family disputes concerning necessaries while the marriage is ongoing. Depending on a couple’s income, what is deemed “necessary” will vary widely. Although the level at which a spouse is to be maintained during marriage should correspond to the couple’s station in lif e, successful litigation defining support obliga- tions during marriage is rare. When a couple separates or divorces, maintenance and support become issues for the courts. The law has recognized the wife’s traditional authority to purchase necessaries. If a husband fails to fulfill his duty of support, his wife is authorized to purchase what necessaries she or their child needs, on the husband’s credit and even against his express wishes. Beyond the basic necessities, courts look to the couple’s circumstances. In some cases fur co ats, gold watches, jewelry, and expensive furniture have been deemed necessaries. In addition, the doctrine of necessaries where it is applied establishes that a spouse can be held liable for the necessary expenses of the other spouse, including those expenses incurred by medical necessity. The future of the necessaries rule is unclear. Some states have abrogated the rule entirely, and others allow it to stand but ensure that it is strictly gender-neutral. In other cases where it applied, courts have modified it, for example requiring a creditor to show that the necessaries were furnished on the non-debtor spouse’s credit, and that the non-debtor spouse has the ability to satisfy the debt. CROSS REFERENCES Alimony; Child Support; Divorce; Husband and Wife. NECESSARY AND PROPER CLAUSE The spe cific powers and duties of the U.S. Congress are enumerated in several places in the Constitution. The most important listing of these powers is in Article I, Section 8, which identifies in 17 paragraphs the many important powers of Congress. The last paragraph grants to Congress the flexibility to create laws or otherwise to act where the Constitution does not give it the explicit authority to act. This clause is known as the Necessary and Proper Clause, although it is not a federal power, in itself. The Necessary and Proper Clause allows Congress “To make all Laws which shall be necessary and proper for carrying into Execu- tion the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Article I, Section 8, Clause 18). It is also sometimes called the “elastic clause.” It grants Congress the powers that are implied in the Constitution, but that are not explicitly stated. That is why the powers derived from the Necessary and Proper Clause are referred to as implied powers. The correct way to interpret the Necessary and Proper Clause was the subject of a debate between Secretary of the Treasury ALEXANDER HAMILTON and SECRETARY OF STATE THOMAS JEFFER- SON . Hamilton argued for an expansive inter- pretation of the clause. His view would have GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NECESSARY AND PROPER CLAUSE 239 authorized Congress to exercise a broad range of implied powers. On the other hand, Jefferson was concerned about vesting too much power in any one branch of government. He argued that “necessary” was a restrictive adjective meaning essential. Jefferson’s interpretation would have strengthened STATES’ RIGHTS. GEORGE WASHINGTON and JAMES MADISON favored Hamil- ton’s more flexible in terpretation, and subse- quent events helped to foster the grow th of a strong central government. Their debate over the Necessary and Proper Clause between Hamilton and Jefferson came to a head in a landmark U.S. SUPREME COURT case of McCulloch v. Maryland, 17 U.S. 316 (1819). McCulloch v. Maryland was the first case in which the U.S. Supreme Court applied the Necessary and Proper Clause. Some constitu- tional historians believe that the opinion in McCulloch v. Maryland represents an important act in the ultimate creation of the U.S. federal government. The case involved the question of whether Congress had the power to charter went to the foundations of constitutional interpretation. To some extent, they are still debated. The First BANK OF THE UNITED STATES was established in 1791, but it had failed in 1811 due to a lack of support from Congress. Inflation in the years following the WAR OF 1812 compelled President James Madison and Congress to establish a new national bank, which was chartered in 1816. The new bank established branches throughout the states. Many state- chartered banks resented the cautious policies of the Bank of the United States. Their directors sought assistance from their state legislatures to restrict the operations of the Bank of the United States. Accordingly, Maryland imposed a tax on the bank’s operations, and when James McCulloch, a cashier of the Baltimore branch of the Bank of the United States, refused to pay the Maryland tax, the issue went to court. The questions befo re the U.S. Supreme Court involved whether the state or national government held more power. Central to this issue was the Court’s interpretation of the Necessary and Proper Clause. The Court held that the state of Maryland could not undermine an act of Congress. The states were subordinate to the federal government. This ruling estab- lished that Congress could use the Necessary and Proper Clause to create a bank even though the Constitution does not explicitly grant that power to Congress. Chief Justice John Marshall’s opinion not only endorsed the constitutionality of the bank but went on to uphold a broad interpretation of the federal government’s powers under the Constitution. The case quickly became the legal cornerstone of subsequent expansions of federal power. In Jinks v. Richland County, S.C. 538 U.S. 456, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003), the Supreme Court reviewed the applicati on of a federal statute that tolls the STATUTE OF LIMITA- TIONS for a state law claim in state court when a claim is initially brought in federal court. The county contended that the state’s statute of limitations was a matter of state sovereignty and thus reserved to the states. The Court found otherwise, ruling that the federal law was within Congress’s power under the Necessary and Proper Clause. The Court reaffirmed that an act of Congress does not need to be “absolutely necessary” in order to satisfy the provisions of this clause. The law needs to be conducive to the administration of justice and “plainly adopted” to meet that end. In Sabri v. U.S., 541 U.S. 600, 124 S.C t. 1941, 158 L.Ed.2d 891 (2004), a criminal DEFENDANT argued that 18 U.S.C.A. § 666(a) (2), which proscribes BRIBERY of state, local, and tribal officials of entities that receive at least $10,000 in federal funds, was not a valid exercise of congressional authority under Article I of the Constitution. The Supreme Court rejected this claim, finding that the law was an instance of necessary and proper legislation. FURTHER READINGS Newmyer, R. Kent. 2001. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State Univ. Press. Simon, James F. 2002. What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. New York: Simon & Schuster. Wilson, Bradford P., and Ken Masugi, eds. 1998. The Supreme Court and American Constitutionalism. Lanham, Md.: Rowman & Littlefield. NECESSITY Necessity is a defense asserted by a criminal or civil defendant that he or she had no choice but to break the law. The necessity defense has long been recog- nized as COMMON LAW and has also been made part of most states’ statutory law. Although no federal statute acknowledges the defense, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 240 NECESSITY SUPREME COURT has recognized it as part of common law. The rationale behind the neces- sity defense is that sometimes, in a particular situation, a technical breach of the law is more advantageous to society than the consequence of strict adherence to the law. The defense is often used successfully in cases that involve a TRESPASS on property to save a person’s life or property. It also has been used, with varying degrees of success, in cases involving more complex questions. Almost all common-law and statutory definitions of the necessity defense include the following elements: (1) the DEFENDANT acted to avoid a significant risk of harm; (2) no adequate lawful means could have been use d to escape the harm; and (3) the harm avoided was greater than that caused by breaking the law. Some jurisdictions require in addition that the harm must have been imminent and that the action taken must have been reasonably expected to avoid the imminent danger. All these elements mirror the principles on which the defense of necessity was founded: first, that the highest social value is not always achieved by blind adherence to the law; second, that it is unjust to punish those who technically violate the LETTER OF THE LAW when they are acting to promote or achieve a higher social value than would be served by strict adherence to the law; and third, that it is in society’s best interest to promote the greatest good and to encourage people to seek to achieve the greatest good, even if doing so necessitates a technical breach of the law. The defense of necessity is considered a justification defense, as compared with an excuse defense such as duress. An action that is harmful but praiseworthy is justified, whereas an action that is harmful but ought to be forgiven may be excused. Rather than focusing on the actor’s state of mind, as would be done with an excuse defense, the court with a necessity defense focuses on the value of the act. No court has ever accepted a defense of necessity to justify killing a person to protect property. Most states that have codified the necessity defense make it available only if the defendant’s value choice has not been specifically contra- dicted by the state legislature. In State v. Romano, 809 A.2d 158 (N.J. Super A.D. 2002), a New Jersey court ruled that a defendant was entitled a defense of necessity in a prosecution for driving while intoxicated ( DWI). The defendant was being brutally and severely beaten by numerous assailants and had no other reasonable means of escape. The court found that the legislature did not weigh the competing value of driving while intoxicated to escape brutal attack by multiple assailants against the value of ridding drunk driver. In addition, the statute did not provide exceptions or defenses dealing with similar situations, and it did not make plain its purpose to exclude necessity defense under similar circumstances. Therefore, the court defined the elements of the necessity defense as follows: “(1) There must be a situation of emergency arising without fault on the part of the actor concerned; (2) This emergency must be so imminent and compel- ling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting; (3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and (4) The injury imp ending from the emergency must be of sufficient seriousness to out measure the criminal wrong.” The necessity defense has been used with sporadic and very limited success in the area of CIVIL DISOBEDIENCE since the 1970s. The most common circumstances involve public protests against ABORTION, NUCLEAR POWER, and NUCLEAR WEAPONS . Virtually all abortion protes ters who have tried to avail themselves of the defense have lost. The courts have reasoned that because the right to an abortion is constitutionally protected, it cannot simultaneously be a legally recognized harm justifying illegal action. In these cases the courts have also denied the defense on the basis that the criminal act of protest would not stop abortions from occur- ring; that the harm caused by the act was greater than the harm of abortion; and that legal means of protest, such as demonstrating outside the clinic rather than entering the clinic or trespas- sing on its property, were available. Conse- quently, according to the courts, there was no necessity for the protesters to break the law. In the vast majority of cases in which protesters, trespassing on property, blocked the entrance to nuclear plants, the courts have denied the necessity defense on the grounds that there was no imminent danger and that the trespassing protesters could not reasonably have believed that their actions would halt the manufacture of nuclear materials (e.g., State v. Marley, 54 Haw. 450, 509 P.2d 1095 [Haw. 1973]). The defense GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NECESSITY 241 has also been denied in civil disobedience cases involving protests aga inst U.S. policy abroad, the homeless problem, lack of funding for AIDS research, harmful logging practices, prison conditions, and human and ANIMAL RIGHTS violations. Necessity has been used successfully by inmates who escape from prison under certain circumstances. In Spakes v. State, 913 S.W.2d 597 (Tex. Crim. App. 1996), the highest criminal court in Texas allowed the jury to be instructed on the necessity defense before deliberating the verdict for an inmate whose three cellmates had planned an escape and threatened to slit his throat if he did not accompany them. The defendant inmate argued that because of the terribly violent crimes of which his cellmates had been convicted (one had bragged about chopping his girlfriend up with an ax), he accompanied them and escaped. Even though he made no attempt to return himself to custody when he was separated from his cellmates, the court still allowed the defense. In contrast, most jurisdictions have held that an escapee must make an attempt to surrender or report to authorities as a condition for asserting the necessity defens e. These courts have rea- soned that once the immediate threat is no longer present, the action of escape is no longer necessary, and consequently it should end. FURTHER READINGS Fleishman, Michael. 2003. “Under the Influence of Neces- sity.” Arizona Law Review 45 (spring). Lowey, Arthur. 2003 Criminal Law in a Nutshell. 4th ed. St. Paul, Minn.: West. Ripstein, Arthur. 1999. Equality, Responsibility, and the Law. New York: Cambridge Univ. Press. Schulkind, Laura J. 1989. “Applying the Necessity Defense to Civil Disobedience Cases.” New York Law Review 64 (April). NEGATIVE COVENANT A covenant that imposes a duty to refrain or desist from doing something. Negative covenants are covenants that require the subject of the COVENANT to not do a specific action. These covenants are used in business transactions to limit the ability of one of the parties to act in a way that could harm the value of the other party. For example, merger agreements entered into by businesses often contain negative covenants that restrict the seller from taking certain actions without the consent of the purchaser. Negative covenants are also often used in REAL ESTATE transactions to stop a borrower from selling off the property as long as the mortgage or loan for the property remains unpaid. Another example of a negative covenant that is commonly used by businesses is a covenant to prevent an employee from competing with the business for a specific period of time once they leave. This is also known as a “noncompetition covenant.” An employer wants to ens ure that a former employee will not parlay informat ion, skills, customer lists, and personal relationships with clients acquired on the job to gain a better position with a competitor or to start his or her own business. An employer also wants to protect his or her business in the competi- tive marketplace against the use of the unique personal skills of a former employee. An employer can achieve these objectives by includ- ing a negative covenant in the employment contract. Such a provision specifies that the employee will not work for a competitor or start a competing business for a period of time after leaving the employer. The covenant must be reasonable in its scope and duration. It cannot bar the employee from working at all, anywhere, or for an unreasonable length of time. In real estate agreements, negative co ve- nants can be differentiated from restrictive covenants in that negative covenants require the covenantor to refrain from doing some act. If the required performance limits the uses that can be made by the owner or occupier of land, the covenant is usually called a RESTRICTIVE COVENANT . In action to enforce a negative covenant, the intent of the drafter controls, but provisions are to be strictly construed against a would-be enforcer, and doubts are resolved in favor of free use of property. NEGLECT An omission to do or perform some work, duty, or act. As used by U.S. courts, the term neglect denotes the failure of responsibility on the part of defendants or attorneys. Neglect is related to the concept of NEGLIGENCE, but its rather limited use in the law sets it apart from that much broader doctrine. In general, neglect means omitting or failing to do something that is required. Neglect is often related to timeliness: GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 242 NEGATIVE COVENANT examples include failure of a taxpayer to file a timely income TAX RETURN; failure of an attorney to meet a deadline for filing an appeal; or failure of a parent to properly care for their child. In determining whether to rule against a party, courts consider the reason for the neglect, which can range from unavoidable accidents and hindrances to the less acceptable extreme of carelessness and indifference to duty. Special terminology applies to some forms of neglect. CULPABLE neglect exists where a loss arises from an individual’s carelessness, improv- idence, or folly. Willful neglect applies to marital cases; it refers to the neglect of one spouse, historically the husband, to provide such essen- tials as food, shelter, and clothing to the other spouse, either because of refusal or indifference. Excusable neglect is used to grant exceptions in cases where neglect was the consequence of accident, unavoidable hindrance, reliance on legal counsel, or reliance on promises made by the adverse party. Excusable neglect can serve as the basis for a motion to vacate a judgment, as in the case of explaining why a deadline for filing an appeal could not be met. Under the Federal Rules of CIVIL PROCEDURE,excusable neglect authorizes a court to permit an act to be done after the official deadline has expired (Fed.R.Civ.P.6(b)). Child neglect is described as the failure to provide the shelter, safety, supervision, and nutritional needs of the child. It may be physical, educational, or emotional neglect. The landmark case of Dupuy v. Samuel s (141 F. Supp. 2d. 1090 [N.D. Ill. 2001 ]; 2003 WL 21557911 [N.D. Ill. Jul. 10, 2003 ] (unreported), aff’d in part, rev’d in part, and remanded by, 397 F.3d 493 [7th Cir. 2005 ]; 2005 WL 588997 [N.D. Ill. Mar. 9, 2005] (unreported); 2005 WL 1498468 [N.D. Ill. Jun. 10, 2005] (unreported); 423 F.3d 714 [7th Cir. 2005]) is the most significant and interesting case regarding child neglect. This case is interesting because it w as just as much about due process as child neglect. In June of 1997, 150,000-plus Illinois residents filed the landmark case Dupuy v. Samuels (also known as Tara S. v. McDonald, Dupuy v. McDonald, and Dupuy v. McEwen) against the Illinois Department of Child and Family Services. It addressed the constitutionality of the credible evidence standards for CHILD ABUSE and neglect reports, the procedures applied during investigations, and an inadequate expun- gement process. The suit also sought the injunctive relief on behalf of CHILD CARE workers terminated from employment due to abuse reports, and children and families who w ere subjected to unconstitutional practices. The suit addressed other constitutional issues, such as the policy and practice of instituting involuntary safety plans without due process protections and the fairness of the administrative hearing process. Dupuy v. Samuels is a constitutional case that challenged several core asp ects of child protection investi- gations, including violating the Fourteenth Amendment’s guarantee of DUE PROCESS OF LAW. The challenged policies include the lack of a constitutional standard for determining who is guilty of child abuse, the long hearing delays for people who seek to clear their names, the improper notices and information given to persons accused of abuse or neglect to allow them to effectively appeal investigative findings against them, and demands made by state investigators that parents or children leave their homes at the outset of investigations, under threats that if they do not do so, their children will be taken into foster care. The Dupuy case has concluded successfully in part one and unsuc- cessfully in part two, setting the stage for advocacy that the Family Defense Center will continue. CROSS REFERENCES Child Abuse; Necessaries; Negligence. NEGLIGENCE Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. To establish neg ligence as a CAUSE OF ACTION under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the proximate cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. The concept of negligence developed under ENGLISH LAW. Although English COMMON LAW had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent CAUSE OF ACTION until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEGLIGENCE 243 Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in pe rforming that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of “duty.” For example, inn- keepers were said to have a duty to protect the safety and security of their guests. The concept of negligence passed from Great Britain to the United State s as each state (except Louisiana) adopted the common law of Great Britain. (Louisiana adopted the CIVIL LAW of France.) Although there have been import- ant developments in negligence law, the basic concepts have remained the same since the eighteenth century. In the early twenty- first century, negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important concepts in negligence law is the “reasonable person,” which provides the standard by which a person’s conduct is judged. Negligence imposes liability for accidental conduct, and the requirements for proof of negligence differ from those for proof of inten- tional torts. The late Supreme Court Justice OLIVER WENDELL HOLMES captured the difference between intentional and negligent acts when he wrote, “Even a dog distinguishes between being stumbled over and being kicked.” The Reasonable Person A person has acted negligently if she has departed from the conduct expected of a reasonably pru dent person acting under similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged. In law, the reasonable person is not an average person or a typical person but a composite of the com- munity’s judgment as to how the typical community member should behave in situa- tions that might pose a threat of harm to the public. Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person. For example, a majority of people in a community may jaywalk, but jaywalking might still fall below the commu- nity’s standards of safe conduct. The concept of the reasonable person distinguishes negligence from intentional torts. For instance, an intoxicated driver who acci- dentally injures a pedestrian may not have intended to cause the pedestrian’s injury. But because a reasonable person would not drive while intoxicated because it creates an unrea- sonable risk of harm to pedestrians and other drivers, an intoxicated driver may be held liable to an injured PLAINTIFF for negligence despite his lack of intent to injure the plaintiff. The law considers a variety of factors in determining whether a person has acted as the hypothetical reasonable person would have acted in a similar situation. These factors include the knowledge, experience, and percep- tion of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person’s actions. Knowledge, Experience, and Perception The law takes into account a person’s knowledge, experience, and perception s in determining whether the individual has acted as a reasonable person would have acted under the same circumstances. Conduct must be judged in light of a person’s actual knowledge and observa- tions, because the reasonable person always takes this into account. Thus, if a driver sees another car approaching at night without lights, the driver must act reasonably to avoid an accident, even though the driver would not have been negligent in failing to see the other car. In addition to actua l knowledge, the law also considers most people to have the same knowledge, experience, and ability to perceive as the hypothetical reasonable person. In the absence of unusual circumstances, a person The law of negligence imposes higher standards on individuals who engage in activities that require special skills and training. For example, someone who engages in the practice of medicine must act as a reasonably skilled, competent, and experienced physician would. NATHAN BENN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 244 NEGLIGENCE must see what is clearly visible and hear what is clearly audible. Therefore, a driver of a car hit by a train at an unobstructed railroad crossing cannot claim that she was not negligent because she did not see or hear the train, because a reasonable person would have seen or heard the train. A person cannot deny personal knowledge of basic facts commonly known in the commu- nity. The reasonable person knows that ice is slippery, that live wires are dangerous, that alcohol impairs driving ability, and that chil- dren might run into the street when they are playing. To act as a reasonable person, an individual must even take into account her lack of knowledge of some situations, such as when walking down a dark, unfamiliar corridor. Finally, a person who undertakes a particu- lar activity is ordinarily considered to have the knowledge common to others who engage in that activity. A motorist must know the rules of the road, and a product manufacturer must know the characteristics and dangers of its product, at least to the extent they are generally known in the industry. Special Skills If a person engages in an activity requiring special skills, education, training , or experience, such as piloting an airplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity. In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. Often, persons practicing these special skills must be licensed, such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so, because the public relies on the special expertise of those who engage in such activi- ties. Thus, an unlicensed driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licens ed driver. The law does not make a special allowance for beginners with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it may seem unfair to hold the beginner to the standards of the more experi- enced person, this standard protects the general public from the risk of a beginner’s lack of competence, because the community is usually defenseless to guard against such risks. Physical Characteristics The law takes a person’s physical characteristics into account in determining whether that person’s conduct is negligent. Whether a person’s conduct is reasonable, and therefore not negligent, is mea- sured against a reasonably prudent person with the same physical c haracteristics. There are two reasons for taking p hysical characteristics into account. A physically impaired individual cannot be expected to conform to a standard of conduct that would be physically imposs- ible for her to meet. On the other hand, a physically challenged pe rson must act reason- ably in light of her han dicap, and she may be negligent in taking a risk that is unreasonable in light of her known physical l imitations. Thus, it would be negligent for a blind person to drive an automobile. Mental Capacity Although a person’s physical characteristics are taken into account in deter- mining negligence, the person’s mental capacity is generally ignored and does not excuse the person from acting according to the reasonable person standard. The fact that an individual is lacking in intelligence, judgment, me mory, or emotional stability does not excuse the person’s failure to act as a reasonably prudent person would have acted under the same circumstances. For example, a person who causes a forest fire by failing to extinguish his campfire cannot claim that he was not negligent because he lacked the intelligence, judgment, or experience to appreci- ate the risk of an untended campfire. Similarly, evidence of voluntary intoxication will not excuse condu ct that is otherwise negligent. Although intoxication affects a per- son’s judgment, voluntary intoxication will not excuse negligent conduct, because it is the person’s conduct, not his or her mental condi- tion, that determines negligence. In some cases, a person’s intoxication is relevant to determin- ing whether his conduct is negligent, however, because undertaking certain activities (such as driving) while intoxicated poses a danger to others. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEGLIGENCE 245 Children Children may be negligent, but they are not held to the same standard of conduct as adults. A child’s conduct is measured against the conduct expected of a child of similar age, intelligence, and experience. Unlike the stan- dard for adults, the standard of reasonable conduct for children takes into account subjec- tive factors such as intelligence and experience. In this sense, the standard is less strict than for adults, because children normally do not engage in the high-risk activities of adults, and adults dealing with children are expected to anticipate their “childish” behavior. In many states, children are presumed incapable of negligence below a certain age, usually seven years. In some states, children between the ages of seven and fourteen years are presumed to be incapable of negligence, although this presumption can be rebutted. Once a person reaches the AGE OF MAJORITY, usually eighteen years, she is held to adult standards of conduct. One major exception to the rules of negligence exists with regard to children. If a child is engaging in what is considered an “adult activity,” such as driving an automobile or flying an airplane, the child will be held to an adult standard of care. The higher standard of care imposed for these types of activities is justified by the special skills required to engage in them and the danger they pose to the public. Emergencies The law recognizes that even a reasonable person can ma ke errors in judgment in emergency situations. Therefore, a person’s conduct in an emergency is evaluated in light of whether it was a reasonable response under the circumstances, even though, in hindsight, another course of action might have avoided the injury. Under some circumstances, failure to antici- pate an emergency may constitute negligence. The reasonable person anticipates, and takes precautions against, foreseeable emergencies. For example, the owner of a theater must consider the possibility of a fire, and the owner of a swimming pool must consider the possibility of a swimmer drowning. Failure to guard against such emergencies can constitute negligence. A person can be negligent in causing an emergency, even if he acts reasonably during the emergency. A theater owner whose negligence causes a fire, for instance, would be liable for the injuries to the patrons, ev en if he saved lives during the fire. Conduct of Others Finally, the reasonable person takes into account the conduct of others and regulates his own conduct accordingly. A reasonable person must even foresee the unlawful or negligent conduct of others if the situation warrants. Thus, a person may be found negligent for leaving a car unlocked with the keys in the ignition because of the foreseeable risk of theft, or for failing to slow down in the vicinity of a schoolyard where children might negligently run into the street. Proof of Negligence In a negligence suit, the plain tiff has the burden of proving that the DEFENDANT did not act as a reasonable person would have acted under the circumstances. The court will in struct the jury as to the standard of conduct required of the defendant. For example, a defendant sued for negligent driving is judged according to how a reasonable person would have driven under the same circumstances. A plaintiff has a variety of means of proving that a defendant did not act as the hypothetical reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that harmed the plaintiff. A plaintiff might introduce expert witnesses, evidence of a customary practice, or CIRCUM- STANTIAL EVIDENCE . Statutes Federal and state statutes, municipal ordinances, and administrative regulations gov- ern all kinds of conduct and frequently impose standards of conduct to be observed. For example, the law prohibits driving through a red traffic light at an intersection. A plaintiff injured by a defendant who ignored a red light can introduce the defendant’s violation of the statute as eviden ce that the defendant acted negligently. However, a plaintiff’s evidence that the defendant violated a statute does not always establish that the defendant acted unreasonably. The statute that was violated must have been intended to protect against the particular hazard or type of harm that caused injury to the plaintiff. Sometimes physical circumstances beyond a person’s control can excuse the violation of a statute, such as when the headlights of a vehicle suddenly fail, or when a driver swerves into oncoming traffic to avoid a child who darted into the street. To excuse the violation, the defendant must establish that, in failing GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 246 NEGLIGENCE to comply with the statute, she acted as a reasonable person would have acted. In many jurisdictions the violation of a statute, regulation, or ordinance enacted to protect against the harm that resulted to the plaintiff is considered negligence per se. Unless the defendant presents evidence excusing the violation of the statute, the defendant’s negli- gence is conclusively established. In some jurisdictions, a defendant’s violation of a statute is merely evidence that the defendant acted negligently. Experts Often a plaintiff will need an expert witness to establish that the defendant did not adhere to the conduct expected of a reasonably prudent person under the defendant’s circum- stances. A juror may be unable to determine from his own experience, for example, whether the medicine prescribed by a physician was reasonably appropriate for a patient’s illness. Experts may provide the jury with information beyond the common knowledge of jurors, such as scientific theories , data, tests, and experi- ments. In cases involving professionals such as physicians, experts establish the standard of care expected of the professional. In the above example, the patient might have a physician offer EXPERT TESTIMONY regarding the medication that a reasonably prudent physician would have prescribed for the patient’s illness. Custom Evidence of the usual and customary conduct or practice of others under similar circumstances can be admitted to establish the proper standard of reasonable conduct. Like the evidence provided by expert witnesses, evidence of custom and habi t is usually used in cases where the nature of the alleged negligence is beyond the common knowledge of the jurors. Often such evidence is presented in cases alleging negligence in some business activ ity. For example, a plaintiff suing the manufacturer of a punch press that injured her might present evidence that all other manufacturers of punch presses incorporate a certain safety device that would have prevented the injury. A plaintiff’s evidence of conformity or nonconformity with a customary practice does not establish whether the defendant was negli- gent; the jury decides whether a reasonably prudent person would have done more or less than is customary. Circumstantial Evidence Sometimes a plain- tiff has no DIRECT EVIDENCE of how the defendant acted and must attempt to prove his case through circumstantial evidence. Of course, any fact in a lawsuit may be proved by circumstantial evidence. Skid marks can estab- lish the speed a car was traveling prior to a collision, and a person’s appearance can cir- cumstantially prove his or her age. Sometimes a plaintiff in a negligence lawsuit must prove his entire case by circumstantial evidence. Suppose a plaintiff’s shoulder is severely injured during an operation to remove his tonsils. The plaintiff, who was unconscious during the operation, sues the doctor in charge of the operation for negligence, even though he has no idea how the injury actually occurred. The doctor refuses to say how the injury occurred, so the plaintiff will have to prove his case by circumstantial evidence. In cases such as this, the doctrine of RES IPSA LOQUITUR (Latin for “the thing speaks for itself”) is invoked. Res ipsa loquitur allows a plaintiff to prove negligence on the theory that his injury could not have occurred in the absence of the defendant’s negligence. The plaintiff must establish that the injury was caused by an instrumentality or condition that was under the defendant’s exclusive management or control and that the plaintiff ’s injury would not have occurred if the defendant had acted with reasonable care. Thus, in the above example, the plaintiff can use res ipsa loquitur to prove that the doctor negligently injured his shoulder. Duty A defendant is not liable in negligence, even if she did not act with reasonable care, if she did not owe a duty to the plaintiff. In general, a person is under a duty to all persons at all times to exercise reasonable care for their physical safety and the safety of their property. This general standard of duty may lead to seemingly unjust results. For example, if a property owner leaves a deep hole in her backyard with no warnings or barriers around the hole, she should be liable if her guest falls into the hole. But what if a trespasser enters the backyard at night and falls into the hole? Although the property owner was negligent in failing to guard against someone falling into the hole, it would be unfair to require the property owner to compensate the trespasser for his injury. Therefore, the law states that a property owner does not have a duty to protect a trespasser from harm. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEGLIGENCE 247 . recog- nized as COMMON LAW and has also been made part of most states’ statutory law. Although no federal statute acknowledges the defense, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 240 NECESSITY SUPREME. Neglect is often related to timeliness: GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 242 NEGATIVE COVENANT examples include failure of a taxpayer to file a timely income TAX RETURN; failure of an. actions would halt the manufacture of nuclear materials (e.g., State v. Marley, 54 Haw. 450, 509 P.2d 1095 [Haw. 1 973 ]). The defense GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NECESSITY 241 has