Negligence

NEGLIGENCE. - It is generally opposed to diligence (v.), and is a carelessness of the will in one's own duty and in one's own actions. It has repercussions in the moral field, in the juridical-penal field and in the ascetic field.

I. UNDER THE MORAL ASPECT

It indicates either the lack of solicitude for the performance of duty or its total omission (Sum. Theol., 2ᵃ-2ᵃᵉ, q. 54, a. 1 ad 3). 1) Duty is the principal matter; but free actions do not escape it either, insofar as, once the intellect has known and weighed what is better, it takes no care to stir and direct the will with the other energies toward execution. The cause of this is nonchalance or ill will or contempt. In its specific concept negligence is essentially an internal act of the intellect, which does not act upon the will; and herein lies the distinguishing note from other similar defects such as sloth, which properly indicates deferring the work beyond the prescribed time, torpor, which is concretized in remiss execution, and inconstancy, by which the will withdraws on account of external impediments. Under this aspect negligence is a specific sin against prudence, to which it is opposed by defect (praecipiendi), and is of itself venial, for the reason that not promptly carrying out what is known to be feasible is born of some less upright affection; it is a mortal sin when it refers to things necessary for eternal salvation or proceeds from a will that despises spiritual things, withdrawing totally from the love of God (ibid., a. 3). In any case it is one of the most deplorable moral infirmities, fruitful of miseries of every kind in individual, family and social life.

To identify well the moral entity of negligence, its manifestations are helpful. Whoever without proportionate cause omits or defers his duty is negligent. The fact refers either to a single case or to several consecutive ones; in the first hypothesis negligence entails a single responsibility against the virtue proper to the commanded act. But if negligence becomes a habit through several consecutive acts, the responsibility, in harmony with the doctrine of human acts, is doubled. First of all the omission, foreseen, at least confusedly, entails a responsibility; moreover, each time the agent is aware of his negligence and does not apply the necessary care to overcome it, he assumes a distinct responsibility in cause. This habitual negligence is to be considered especially in professionals and in those who have assumed specific commitments, when they do not keep themselves up to date or do not respond to legitimate requests. But the masses are not excluded from it. Today in religious and ethical matters prejudices, superficiality, etc. are widespread: one of the principal causes is the common negligence of religious duties (instruction, etc.). To fix, however, the limits of the gravity of negligence is difficult, all the more so since, in order to contract a distinct culpability, it is required that one have knowledge of it.

II. FROM THE CRIMINAL LAW PERSPECTIVE

Here too the principle holds that the external reflects the psychological state of the agent; therefore the law gives negligence the specific character of omission of due diligence in the observance of one's duty, failing therein or causing damages through lack of the appropriate precautions.

The CIC speaks only of omission of due diligence, whereas the Italian Penal Code also speaks of imprudence, lack of skill and non-observance of laws, regulations, etc.: canonically these elements can be brought within negligence. The CIC, while in the doctrinal section (cann. 2199, 2203 § 1, 2229 § 3, 2°) it speaks of omission of due diligence, in its applications uses the term negligence and its derivatives.

Negligence, given the necessary elements, is punished in proportion to the relative culpability. The CIC places it together with ignorance among the causes of the culpable offense (or quasi-offense: can. 2199); the Italian Penal Code (art. 43) inserts the preterintentional between the intentional and the culpable offense: a distinction which, while not substantially changing the concepts, serves to determine responsibility in an individual more precisely.

Negligence gives rise to civil and criminal liability (CIC, can. 2210 § 1; Italian Civil Code, art. 2043): 1) in the voluntary omission of duty, 2) in the omission of the appropriate precautions in the case of damages. Foreseeing the damage is not necessary; the culpable non-observance of precautions suffices. The doctrine of human acts applies: if an unlawful effect is intended by the agent, there is the directly voluntary (in criminal law, the intentional offense): if the agent did not intend it, but performs an action from which he ought to foresee it as caused, there is the voluntary in cause (the culpable offense). But if the agent, while not intending the unlawful effect, foresaw it, the fault is close to intent (CIC, can. 2203 § 1).

The foundation of liability in the case of omission lies in the violation of the law; in the case of failure of diligence it lies in the neglect of the general obligation, inherent in every law, to avoid not only every unlawful action, but also to use the appropriate means so as not to cause damages.

The measure of negligence is the failure of diligence. According to the classical expression, in actions the diligence of the «good father of a family» is required (CIC, can. 1523; Italian Civil Code, art. 1176). Two degrees of negligence can be distinguished: 1) grave, if the diligence customarily used in important affairs is omitted; 2) light, if not all the diligence that could be used is used. The ancient canonists spoke of very light negligence. Only grave negligence, or negligence that appears such externally, is juridically imputable (can. 2218 § 2), without prejudice to can. 2222; once the external transgression is established, however, whoever invokes light negligence must prove it.

Negligence, like other causes, excuses from latae sententiae penalties, if the law requires full knowledge and deliberation with the terms «praesumperit, temerarie, scienter», etc.; otherwise it does not excuse (can. 2229).

Negligence is subject to sanctions insofar as it indicates delay of one's own duty or in the exercise of one's rights (cann. 188, 2°; 274, 5; 343 § 1; 410 § 3; 432; 512 § 2, 1°; 1457 ff.; 1634 § 1; 1881 etc., 1902, 2°; 1895; 2398; in general, can. 35), total or partial omission of duty (cann. 617; 2182-85, in relation to can. 2382; 2348; 2403), neglected execution (cann. 2182-85; 2383; 2378), contempt of authority (can. 2393).

III. FROM THE ASCETIC PERSPECTIVE

Sacred Scripture and the Doctors insist on condemning negligence, as a probable cause of the loss of Grace and of glory (I Tim. 4:14; I Cor. 16); and they recommend the vigilance and the solicitude of the faithful and prudent servant. Here, however, negligence is often confused with sloth (v.).

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