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Negligence
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For other uses, see Negligence (disambiguation).
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Negligence (Lat. negligentia)[1] is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances.[2] The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.[3]
Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.[4]
Contents
1 Elements of negligence claims
1.1 Duty of care
1.2 Breach of duty
1.2.1 Intention and/or malice
1.3 Causation
1.3.1 Factual causation (actual cause)
1.3.2 Legal causation (proximate cause)
1.4 Injury
2 Damages
3 Procedure in the United States
4 See also
5 Footnotes
6 References
7 External links
Elements of negligence claims[edit]
Some things must be established by anyone who wants to sue in negligence. These are what are called the "elements" of negligence.
Most jurisdictions say that there are four elements to a negligence action:[5]
duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care,
breach: the defendant breaches that duty through an act or culpable omission,
damages: as a result of that act or omission, the plaintiff suffers an injury, and
causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.
Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.[6] Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.[6] However, at their heart, the various definitions of what constitutes negligent conduct are very similar.
Duty of care[edit]
Main article: Duty of care
A decomposed snail in Scotland was the humble beginning of the modern English law of negligence
The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty. In the tort of negligence the term used is duty of care [7]
The case of Donoghue v Stevenson[8] [1932] established the modern law of negligence, laying the foundations of the duty of care and the fault principle which, (through the Privy Council), have been adopted throughout the Commonwealth. May Donoghue and her friend were in a café in Paisley. The friend bought Mrs Donoghue a ginger beer float. She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle. Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson. (As Mrs Donoghue had not herself bought the ginger beer, the doctrine of privity precluded a contractual action against Stevenson).
The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict (the Scots law nearest equivalent of tort). The case proceeded to the House of Lords, where Lord Atkin interpreted the biblical ordinance to 'love thy neighbour' as a legal requirement to 'not harm thy neighbour.' He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question."
In England the more recent case of Caparo Industries Plc v Dickman [1990] introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.
In Australia, Donoghue v Stevenson was used as a persuasive precedent in the case of Grant v Australian Knitting Mills (AKR) (1936).[9] This was a landmark case in the development of negligence law in Australia.[10]
Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002).[11][12] Determining a duty for mental harm has now been subsumed into the Civil Liability Act 2002 in New South Wales.[13] The application of Part 3 of the Civil Liability Act 2002 (NSW) was demonstrated in Wicks v SRA (NSW); Sheehan v SRA (NSW).[14]
Breach of duty[edit]
See also: Breach of duty in English law
In Bolton v Stone, the English Law Lords were sympathetic to cricket players
Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective,Which is totally based on observation and personal prejudice or view) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective,Which is totally based on ground facts and reality without any personal prejudice or point of view.] in the same situation would clearly have realized, also breaches that duty.[15][16] However, whether the test is objective or subjective may depend upon the particular case involved.
There is a reduced threshold for the standard of care owed by children. In the Australian case of McHale v Watson,[17] McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12-year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a 12-year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development.
Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures. Doctors owe both objective and subjective duties to warn; and breach of either is sufficient to satisfy this element in a court of law. For example, the Civil Liability Act in Queensland outlines a statutory test incorporating both objective and subjective elements.[18] For example, an obstetrician who fails to warn a mother of complications arising from childbirth may be held to have breached their professional duty of care.
In Donoghue v Stevenson, Lord Atkin declared that "the categories of negligence are never closed"; and in Dorset Yacht v Home Office it was held that the government had no immunity from suit when they negligently failed to prevent the escape of juvenile offenders who subsequently vandalise a boatyard. In other words, all members of society have a duty to exercise reasonable care toward others and their property. In Bolton v. Stone (1951),[19] the House of Lords held that a defendant was not negligent if the damage to the plaintiff were not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside a cricket ground. Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable. As stated in the opinion, 'reasonable risk' cannot be judged with the benefit of hindsight.[citation needed] In Roe v Minister of Health,[20] Lord Denning said the past should not be viewed through rose coloured spectacles, finding no negligence on the part of medical professionals accused of using contaminated medical jars, since contemporary standards would have indicated only a low possibility of medical jar contamination.
United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947)
For the rule in the U.S., see: Calculus of negligence
Intention and/or malice[edit]
Further establishment of conditions of intention or malice where applicable may apply in cases of gross negligence.[21]
Causation[edit]
Main article: Causation (law)
In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence.
Factual causation (actual cause)[edit]
See also: Causation in English law and Breaking the chain
For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained.[22] Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred 'but for', or without, the accused party's breach of the duty owed to the injured party.[23][24][25] In Australia, the High Court has held that the 'but for' test is not the exclusive test of causation because it cannot address a situation where there is more than one cause of damage.[24] When 'but for' test is not satisfied and the case is an exceptional one, a commonsense test ('Whether and Why' test) will be applied[26] Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.
Legal causation (proximate cause)[edit]
Negligence can lead to this sort of collision: a train wreck at Gare Montparnasse in 1895.
Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J., "liability in an indeterminate amount for an indeterminate time to an indeterminate class."[27] It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible? For instance, in Palsgraf v. Long Island Rail Road Co.[28] the judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because of fireworks explosion that fell on her as she waited on a train platform. The scales fell because of a far-away commotion but it was not clear that what type of commotion caused the scale to fall,either it was the explosion's effect or the confused movement of the terrified people. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform.Which became the cause of commotion on platform & As a consequence, the scales fell.[29] Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.[30]
The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.
Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.
Remoteness takes another form, seen in The Wagon Mound (No. 2).[31] The Wagon Mound was a ship in Sydney harbour. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The Privy Council determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.
In Australia the concept of remoteness, or proximity, was tested with the case of Jaensch v Coffey.[12] The wife of a policeman, Mrs Coffey suffered a nervous shock injury from the aftermath of a motor vehicle collision although she was not actually at the scene at the time of the collision. The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision. Here there was sufficient causal proximity. See also Kavanagh v Akhtar,[32] Imbree v McNeilly,[33] and Tame v NSW.[11]
Injury[edit]
Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss; it was reasonably foreseeable. It means something more than pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof. (See Constantine v Imperial Hotels Ltd [1944] KB]).
Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no pecuniary loss as a result even though he had suffered emotional injury or damage but he cannot be compensated for these kind of losses.The plaintiff can be compensated for emotional or non-pecuniary losses on the condition that If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.
The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.
The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury,[34]) or reputational (in a defamation case).
In English law, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.
Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.
A claimant who has suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress alone – even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.[35]
The eggshell skull rule is a legal doctrine upheld in some tort law systems, which holds that a tortfeasor is liable for the full extent of damage caused, even where the extent of the damage is due to the unforeseen frailty of the claimant. The eggshell skull rule was recently maintained in Australia in the case of Kavanagh v Akhtar.[32]
Damages[edit]
Main article: Damages
Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.
One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person".[36] The test is self-explanatory: would a reasonable person (as determined by a judge or jury), under the given circumstances, have done what the defendant did to cause the injury in question; or, in other words, would a reasonable person, acting reasonably, have engaged in similar conduct when compared to the one whose actions caused the injury in question? Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.
Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.
There are also two other general principles relating to damages. Firstly, the award of damages should take place in the form of a single lump sum payment. Therefore, a defendant should not be required to make periodic payments (however some statutes give exceptions for this). Secondly, the Court is not concerned with how the plaintiff uses the award of damages. For example, if a plaintiff is awarded $100,000 for physical harm, the plaintiff is not required to spend this money on medical bills to restore them to their original position - they can spend this money any way they want.[37]
Types of damage
Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one's car.
General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.
Punitive damages - Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless).
Aggravated damages - In contrast to exemplary damages, compensation are given to the plaintiff when the harm is aggravated by the defendant's conduct. For example, the manner of this wrongful act increased the injury by subjecting the plaintiff to humiliation, insult.[38]
Procedure in the United States[edit]
The United States generally recognizes four elements to a negligence action: duty, breach, proximate causation and injury.[39] A plaintiff who makes a negligence claim must prove all four elements of negligence in order to win his or her case.[40] Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment.[41]
The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the finder of fact at trial (the judge in a bench trial, or jury in a jury trial) to decide whether the defendant is or is not liable. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy.[42] The court can find that regardless of any disputed facts, the case may be resolved as a matter of law from undisputed facts because as a matter of law the defendant cannot be legally responsible for the plaintiff's injury under a theory of negligence.[42]
On appeal, depending on the disposition of the case and the question on appeal, the court reviewing a trial court's determination that the defendant was negligent will analyze at least one of the elements of the cause of action to determine if it is properly supported by the facts and law. For example, in an appeal from a final judgment after a jury verdict, the appellate court will review the record to verify that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his or her case.[43]
See also[edit]
Carelessness
Criminal negligence
Gross negligence
Intentionality
Malpractice
Medical negligence
Mens rea
Neglect
Negligence in English Law
Footnotes[edit]
Jump up ^ "Negligence". Oxford Living Dictionaries. Oxford University Press. Retrieved 24 July 2017.
Jump up ^ "Negligence". Encyclopædia Britannica. Merriam Webster. Retrieved 12 June 2011.
Jump up ^ Feinman, Jay (2010). Law 101. New York: Oxford University Press. ISBN 978-0-19-539513-6.
Jump up ^ Deakin, Tort Law, 218
Jump up ^ Boehm, Theodore R. (2003). "A Tangled Webb - Reexamining the Role of Duty in Indiana Negligence Actions". Indiana Law Review. 37 (1). Retrieved 22 September 2017.
^ Jump up to: a b Owen, David G. (Summer 2007). "The Five Elements of Negligence". Hofstra Law Review. 35 (4): 1671. Retrieved 22 September 2017.
Jump up ^ Quill, Eoin (2014). Torts In Ireland. Dublin 12: Gill & Macmillan. p. 19.
Jump up ^ Donoghue v Stevenson [1932] AC 532
Jump up ^ Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1, (1935) 54 CLR 49 (21 October 1935), Privy Council (on appeal from Australia).
Jump up ^ "Example of the Development of the Law of Negligence" (PDF). law.uwa.edu.au. .
^ Jump up to: a b Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35, (2002) 211 CLR 317, High Court (Australia).
^ Jump up to: a b Jaensch v Coffey [1984] HCA 52, (1984) 155 CLR 549, High Court (Australia).
Jump up ^ Civil Liability Act 2002 (NSW) s 32.
Jump up ^ Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22, (2010) 241 CLR 60, High Court (Australia);
see also Koehler v Cerebos (Australia) Ltd [2005] HCA 15, (2005) 222 CLR 44, High Court (Australia).
Jump up ^ Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 (1 May 1980), High Court (Australia).
Jump up ^ Doubleday v Kelly [2005] NSWCA 151, Court of Appeal (NSW, Australia); see also Drinkwater v Howart [2006] NSWCA 222, Court of Appeal (NSW, Australia).
Jump up ^ McHale v Watson [1966] HCA 13 (7 March 1966), High Court (Australia).
Jump up ^ Civil Liability Act 2003 (Qld) s 21.
Jump up ^ Bolton v. Stone, [1951] A.C. 850 see also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, High Court (Australia).
Jump up ^ Roe v Minister of Health (1954) 2 AER 131; see also Glasgow Corporation v Muir (1943) 2 AER 44.
Jump up ^ Proc (Bayl Univ Med Cent). 2006 Oct; 19(4): 417–418. PMC 1618741. 'Malice/gross negligence' by Russell G. Thornton, JD. [1]
Jump up ^ Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; (1976) 50 ALJR 720 LawCite records.
Jump up ^ Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, High Court (Australia); Strong v Woolworths [2012] HCA 5, (2012) 246 CLR 182, High Court (Australia);
^ Jump up to: a b March v Stramare (E & MH) Pty Ltd [1991] HCA 12, (1991) 171 CLR 506, High Court (Australia).
Jump up ^ Wallace v Kam [2013] HCA 19, High Court (Australia).
Jump up ^ Civil Liability Act 2005 (NSW) s 5d(2).
Jump up ^ Ultramares Corp. v. Touche(1931) 255 N.Y. 170, 174 N.E. 441
Jump up ^ Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99
Jump up ^ The plaintiff's physical injuries were minor and more likely caused by a stampede of travelers on the platform rather than the concussion of the exploding fireworks. These details have not, however, stopped the case from becoming the source of extensive debate in American tort law.
Jump up ^ She could have sued the man or the conductor himself, but they did not have as much money as the company. Often, in litigation, where two defendants are equally liable but one is more able to satisfy a judgment, he will be the preferred defendant and is referred to as the "deep pocket."
Jump up ^ Overseas Tankship (UK) Ltd v The Miller Steamship Co (Wagon Mound No. 2) [1966] UKPC 10, [1967] AC 617; [1967] 2 All ER 709 (25 May 1966), Privy Council (on appeal from NSW).
^ Jump up to: a b Kavanagh v Akhtar [1998] NSWSC 779, Supreme Court (NSW, Australia).
Jump up ^ Imbree v McNeilly [2008] HCA 40, High Court (Australia).
Jump up ^ See, eg, Sharman v Evans [1977] HCA 8, (1977) 138 CLR 563, High Court (Australia).
Jump up ^ See Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
Jump up ^ Blyth v Birmingham Waterworks Co (1856) Ex Ch 781
Jump up ^ Todorovic v Waller [1981] HCA 72, (1981) 150 CLR 402, High Court (Australia).
Jump up ^ State of NSW v Riley [2003] NSWCA 208, Court of Appeal (NSW, Australia).
Jump up ^ Larson, Aaron (21 December 2016). "Negligence and Tort Law". ExpertLaw. Retrieved 22 September 2017.
Jump up ^ Healey, Paul D. (1995). "Chicken Little at the Reference Desk: The Myth of Librarian Liability". Law Library Journal. 87: 515. Retrieved 22 September 2017.
Jump up ^ Currie, David P. (Autumn 1977). "Thoughts on Directed Verdicts and Summary Judgments". The University of Chicago Law Review. 45 (1): 72–79. JSTOR 1599201.
^ Jump up to: a b McLauchlan, William P. (June 1977). "An Empirical Study of the Federal Summary Judgment Rule". The Journal of Legal Studies. 6 (2): 427–459. Retrieved 22 September 2017.
Jump up ^ Hofer, Ronald R. (1990). "Standards of Review - Looking beyond the Labels". Marquette Law Review. 74. Retrieved 22 September 2017.
References[edit]
Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin's Tort Law. Oxford University Press. ISBN 0-19-925711-6. 789018279[0009]AB001
Kujinga, Benjamin (2009). "REASONABLE CARE AND SKILL — THE MODERN SCOPE OF THE AUDITOR'S DUTY". GAA Accounting.
Tomasic, Roman; Bottomley, Stephen; McQueen, Rob (2002). "Audits and Auditors". Corporations Law in Australia. Federation Press.
External links[edit]
Britannica 1911's account of negligence: an interesting historical read, preceding the era of Buick Motor and Donoghue v. Stevenson.
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Service-level agreement
From Wikipedia, the free encyclopedia
Jump to navigation Jump to search
For other uses, see SLA (disambiguation).
A service-level agreement (SLA) is a commitment between a service provider and a client. Particular aspects of the service – quality, availability, responsibilities – are agreed between the service provider and the service user.[1] The most common component of SLA is that the services should be provided to the customer as agreed upon in the contract. As an example, Internet service providers and telcos will commonly include service level agreements within the terms of their contracts with customers to define the level(s) of service being sold in plain language terms. In this case the SLA will typically have a technical definition in mean time between failures (MTBF), mean time to repair or mean time to recovery (MTTR); identifying which party is responsible for reporting faults or paying fees; responsibility for various data rates; throughput; jitter; or similar measurable details.
Contents
[hide]
1 Overview
2 Components
3 Common metrics
4 Specific example
4.1 Backbone Internet providers
4.2 WSLA
4.3 Cloud computing
4.4 Outsourcing
5 See also
6 References
7 External links
Overview[edit]
A service-level agreement is an agreement between two or more parties, where one is the customer and the others are service providers. This can be a legally binding formal or an informal "contract" (for example, internal department relationships). The agreement may involve separate organizations, or different teams within one organization. Contracts between the service provider and other third parties are often (incorrectly) called SLAs – because the level of service has been set by the (principal) customer, there can be no "agreement" between third parties; these agreements are simply "contracts." Operational-level agreements or OLAs, however, may be used by internal groups to support SLAs. If some aspect of a service has not been agreed with the customer, it is not an "SLA".
SLAs commonly include many components, from a definition of services to the termination of agreement.[2] To ensure that SLAs are consistently met, these agreements are often designed with specific lines of demarcation and the parties involved are required to meet regularly to create an open forum for communication. Rewards and penalties applying to the provider are often specified. Most SLAs also leave room for periodic (annual) revisitation to make changes.[3]
Since late 1980s SLA's have been used by fixed line telecom operators. SLAs are so widely used these days that larger organizations have many different SLAs existing within the company itself. Two different units in an organization script a SLA with one unit being the customer and another being the service provider. This practice helps to maintain the same quality of service amongst different units in the organization and also across multiple locations of the organization. This internal scripting of SLA also helps to compare the quality of service between an in-house department and an external service provider.[4]
The output received by the customer as a result of the service provided is the main focus of the service level agreement.
Service level agreements are also defined at different levels:
Customer-based SLA: An agreement with an individual customer group, covering all the services they use. For example, an SLA between a supplier (IT service provider) and the finance department of a large organization for the services such as finance system, payroll system, billing system, procurement/purchase system, etc.
Service-based SLA: An agreement for all customers using the services being delivered by the service provider. For example:
A mobile service provider offers a routine service to all the customers and offers certain maintenance as a part of an offer with the universal charging.
An email system for the entire organization. There are chances of difficulties arising in this type of SLA as level of the services being offered may vary for different customers (for example, head office staff may use high-speed LAN connections while local offices may have to use a lower speed leased line).
Multilevel SLA: The SLA is split into the different levels, each addressing different set of customers for the same services, in the same SLA.
Corporate-level SLA: Covering all the generic service level management (often abbreviated as SLM) issues appropriate to every customer throughout the organization. These issues are likely to be less volatile and so updates (SLA reviews) are less frequently required.
Customer-level SLA: covering all SLM issues relevant to the particular customer group, regardless of the services being used.
Service-level SLA: covering all SLM issue relevant to the specific services, in relation to this specific customer group.
Components[edit]
A well defined and typical SLA will contain the following components:[5]
Type of service to be provided: It specifies the type of service and any additional details of type of service to be provided. In case of an IP network connectivity, type of service will describe functions such as operation and maintenance of networking equipment, connection bandwidth to be provided, etc.
The service's desired performance level, especially its reliability and responsiveness: A reliable service will be the one which suffers minimum disruptions in a specific amount of time and is available at almost all times. A service with good responsiveness will perform the desired action promptly after the customer requests for it.
Monitoring process and service level reporting: This component describes how the performance levels are supervised and monitored. This process involves gathering of different type of statistics, how frequently this statistics will be collected and how this statistics will be accessed by the customers.
The steps for reporting issues with the service: This component will specify the contact details to report the problem to and the order in which details about the issue have to be reported. The contract will also include a time range in which the problem will be looked upon and also till when the issue will be resolved.
Response and issue resolution time-frame: Response time-frame is the time period by which the service provider will start the investigation of the issue. Issue resolution time-frame is the time period by which the current service issue will be resolved and fixed.
Repercussions for service provider not meeting its commitment: If the provider is not able to meet the requirements as stated in SLA then service provider will have to face consequences for the same. These consequences may include customer's right to terminate the contract or ask for a refund for losses incurred by the customer due to failure of service.
Common metrics[edit]
Service level agreements can contain numerous service performance metrics with corresponding service level objectives. A common case in IT service management is a call center or service desk. Metrics commonly agreed to in these cases include:
Abandonment Rate: Percentage of calls abandoned while waiting to be answered.
ASA (Average Speed to Answer): Average time (usually in seconds) it takes for a call to be answered by the service desk.
TSF (Time Service Factor): Percentage of calls answered within a definite timeframe, e.g., 80% in 20 seconds.
FCR (First-Call Resolution): Percentage of incoming calls that can be resolved without the use of a callback or without having the caller call back the helpdesk to finish resolving the case.[6]
TAT (Turn-Around Time): Time taken to complete a certain task.
MTTR (Mean Time To Recover): Time taken to recover after an outage of service.
Uptime is also a common metric, often used for data services such as shared hosting, virtual private servers and dedicated servers. Common agreements include percentage of network uptime, power uptime, number of scheduled maintenance windows, etc.
Many SLAs track to the Information Technology Infrastructure Library specifications when applied to IT services.
Specific example[edit]
Backbone Internet providers[edit]
It is not uncommon for an internet backbone service provider (or network service provider) to explicitly state its own SLA on its website.[7][8][9] The U.S. Telecommunications Act of 1996 does not expressly mandate that companies have SLAs, but it does provide a framework for firms to do so in Sections 251 and 252.[10] Section 252(c)(1) for example ("Duty to Negotiate") requires Incumbent local exchange carriers (ILECs) to negotiate in good faith about matters such as resale and access to rights of way.
WSLA[edit]
A web service level agreement (WSLA) is a standard for service level agreement compliance monitoring of web services. It allows authors to specify the performance metrics associated with a web service application, desired performance targets, and actions that should be performed when performance is not met.
WSLA Language Specification, version 1.0 was published by IBM on January 28, 2001.
Cloud computing[edit]
The underlying benefit of cloud computing is shared resources, which is supported by the underlying nature of a shared infrastructure environment. Thus, SLAs span across the cloud and are offered by service providers as a service-based agreement rather than a customer-based agreement. Measuring, monitoring and reporting on cloud performance is based on the end UX or their ability to consume resources. The downside of cloud computing relative to SLAs is the difficulty in determining the root cause of service interruptions due to the complex nature of the environment.
As applications are moved from dedicated hardware into the cloud, they need to achieve the same or even more demanding levels of service than classical installations. SLAs for cloud services focus on characteristics of the data center and more recently include characteristics of the network (see carrier cloud) to support end-to-end SLAs.[11]
Any SLA management strategy considers two well-differentiated phases: negotiating the contract and monitoring its fulfilment in real time. Thus, SLA management encompasses the SLA contract definition: the basic schema with the QoS parameters; SLA negotiation; SLA monitoring; SLA violation detection; and SLA enforcement—according to defined policies.
The main point is to build a new layer upon the grid, cloud, or SOA middleware able to create a negotiation mechanism between the providers and consumers of services. An example is the EU–funded Framework 7 research project, SLA@SOI,[12] which is researching aspects of multi-level, multi-provider SLAs within service-oriented infrastructure and cloud computing, while another EU-funded project, VISION Cloud,[13] has provided results with respect to content-oriented SLAs.
FP7 IRMOS also investigated aspects of translating application-level SLA terms to resource-based attributes in an effort to bridge the gap between client-side expectations and cloud-provider resource-management mechanisms.[14][15] A summary of the results of various research projects in the area of SLAs (ranging from specifications to monitoring, management and enforcement) has been provided by the European Commission.[16]
Outsourcing[edit]
Outsourcing involves the transfer of responsibility from an organization to a supplier. This new arrangement is managed through a contract that may include one or more SLAs. The contract may involve financial penalties and the right to terminate if any of the SLAs metrics are consistently missed. Setting, tracking and managing SLAs is an important part of the outsourcing relationship management (ORM) discipline. Specific SLAs are typically negotiated up front as part of the outsourcing contract and used as one of the primary tools of outsourcing governance.
In software development, specific SLAs can apply to application outsourcing contracts in line with standards in software quality, as well as recommendations provided by neutral organizations like CISQ, which has published numerous papers on the topic (such as Using Software Measurement in SLAs[17]) that are available to the public.
See also[edit]
Best-effort delivery
IT cost transparency
Network monitoring
Operational-level agreement (OLA)
Service-oriented architecture (SOA)
Service level
Service level objective
Service level requirement
References[edit]
Jump up ^ Kearney, K.T.; Torelli, F. (2011). "The SLA Model". In Wieder, P.; Butler, J.M.; Theilmann, W.; Yahyapour, R. Service Level Agreements for Cloud Computing. Springer Science+Business Media, LLC. pp. 43–68. ISBN 9781461416142. CS1 maint: Multiple names: authors list (link)
Jump up ^ "The Service Level Agreement Zone". SLA Information Zone. Service Level Agreement Zone. 2015. Retrieved 22 June 2016.
Jump up ^ Shacklett, M.E. (12 January 2011). "Five Key Points for Every SLA". Dell. Archived from the original on 22 December 2012. Retrieved 22 June 2016.
Jump up ^ Ding, Jianguo (2010). Advances in Network Management. Auerbach Publications. ISBN 978-1-4200-6455-1.
Jump up ^ Verma, Dinesh (September 2004). "Service level agreements on IP networks" (PDF). IEEE. 92 (9).
Jump up ^ Desmarais, Mike (2012). "First Call Resolution" (PDF).
Jump up ^ "Global IP Network SLA". NTT Communications. Retrieved 22 June 2016.
Jump up ^ "Global Latency and Packet Delivery SLA". Verizon. Retrieved 22 June 2016.
Jump up ^ "Business Edition - AT&T U-verse Voice and TV - Terms of Service (TOS) and AT&T Broadband - Service Level Agreement (SLA)". AT&T. Retrieved 22 June 2016.
Jump up ^ Wikisource:Telecommunications Act of 1996#SEC. 101. ESTABLISHMENT OF PART II OF TITLE II.
Jump up ^ Rueda, J.L.; Gómez, S.G.; Chimento, A.E. (2011). "The Service Aggregator Use Case Scenario". In Wieder, P.; Butler, J.M.; Theilmann, W.; Yahyapour, R. Service Level Agreements for Cloud Computing. Springer Science+Business Media, LLC. pp. 329–342. ISBN 9781461416142. CS1 maint: Multiple names: authors list (link)
Jump up ^ Butler, J.M.; Yahyapour, R.; Theilmann, W. (2011). "Motivation and Overview". In Wieder, P.; Butler, J.M.; Theilmann, W.; Yahyapour, R. Service Level Agreements for Cloud Computing. Springer Science+Business Media, LLC. pp. 3–12. ISBN 9781461416142. CS1 maint: Multiple names: authors list (link)
Jump up ^ Villari, M.; Tusa, F.; Celesti, A.; Puliafito, A. (2012). "How to Federate VISION Cloud through SAML/Shibboleth Authentication". In De Paoli, F.; Pimentel, E.; Zavattaro, G. Service-Oriented and Cloud Computing. Springer-Verlag Berlin Heidelberg. pp. 259–274. ISBN 9783642334276. CS1 maint: Multiple names: authors list (link)
Jump up ^ Boniface, M.; Nasser, B.; Papay, J.; et al. (2010). "Platform-as-a-Service Architecture for Real-Time Quality of Service Management in Clouds". ICIW '10: Proceedings of the 2010 Fifth International Conference on Internet and Web Applications and Services: 155–160. doi:10.1109/ICIW.2010.91. CS1 maint: Multiple names: authors list (link)
Jump up ^ Cuomo, A.; Di Modica, G.; Distefano, S.; et al. (2013). "An SLA-based Broker for Cloud Infrastructures". Journal of Grid Computing. 11 (March 2013): 1–25. doi:10.1007/s10723-012-9241-4. CS1 maint: Multiple names: authors list (link)
Jump up ^ Kyriazis, D., ed. (June 2013). "Cloud Computing Service Level Agreements - Exploitation of Research Results". European Commission. p. 51. Retrieved 22 June 2016.
Jump up ^ Curtis, B.; Herron, D.; Subramanyam, J. (July 2015). "Using Software Measurement in SLAs: Integrating CISQ Size and Structural Quality Measures into Contractual Relationships" (PDF). CISQ. Retrieved 22 June 2016. CS1 maint: Multiple names: authors list (link)
External links[edit]
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values: সেবা-পর্যায়ের চুক্তি – Bangla

values: Споразумение за ниво на обслужване – Bulgarian

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interlanguage-link interwiki-bg
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values: موافقت نامه سطح خدمات – Persian

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interlanguage-link interwiki-fa
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values: 서비스 수준 협약서 – Korean

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interlanguage-link interwiki-ko
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interlanguage-link interwiki-it
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values: サービス水準合意 – Japanese

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interlanguage-link interwiki-uz
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values: Соглашение об уровне услуг – Russian

values: Dohoda o úrovni poskytovaných služieb – Slovak

values: Угода про рівень послуг – Ukrainian

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interlanguage-link interwiki-uk
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values: 服务级别协议 – Chinese

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