What tense to use in a general rule statement?

Question

I'm confused as to what verb tense to use when I am stating a general rule. For example:

If the victim is not foreseeable, then there is no negligence since the defendant owes the victim no duty.

If the victim was not foreseeable, then there is(was?) no negligence since the defendant owed the victim no duty.

Whcih tense am I suppose to use when I'm just stating a general rule and nothing has happened yet?

Thank you in advance.

CalifJim · Accepted Answer

Nasuman,

Use the present tense to state general rules.

Your sentences are difficult to understand, however, but that's a different question.

CJ

Nasuman · Answer

Thanks for replying, CJ, but let me clarify the sentence a bit.

To establish negligence, the plaintiff has to prove that he is(was?) a forseeable victim and the defendant owes (owed?) him a duty of care.

I'm stating this as a general rule, and I believe that present tense should be used.

But, thinking more deeply, how can you have a plaintiff unless he was already a victim and the defendant had owed a duty to the plaintiff. So even in a general sense, wouldn't it make sense to use the past tense?

I hope this clarifies the sentence and my concern.

CalifJim · Answer

Now I see what you mean. The main clause has to be in the present: "... the plaintiff has to prove ..." The others should be in the past.

The problem areas of the sentence are "foreseeable victim" and "owes him a duty of care", neither of which would be used in English. These expressions are not used in English and are therefore particularly difficult for a native speaker to decipher.

Your sentence seems to be from a textbook in law, which is not my area, but I sense that you want to say something like the following:

To establish negligence, the plaintiff has to prove that the defendant should have foreseen and taken reasonable care to guard against the potential for the injury which the plaintiff suffered.

You know more about the law than I, so you may have to modify this further.

CJ

Just the truth · Answer

Making the ssumption that 'foreseeable victim' and 'duty of care' are pieces of understood legal jargon, it's my opinion that the entire sentence would be written in the present tense. The present tense form is used to describe a general truth and what else is a principle of law but a general truth.

To establish negligence, the plaintiff has to prove that he is a forseeable victim [meaning, as this term is defined] and the defendant owes him a duty of care [that care as described by the law].

Mens Rea - If the defendant, with the mens rea of a particular crime, does an act, which causes the actus reus of the same crime, he is guilty, although the result, in some respects, is an unintended one.

Latimer 1886 - D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V.

Held: the intention to strike C was transferred to V under the doctrine of transferred malice.

Guilty

Nasuman · Answer

Thank you CJ and Just the truth. I appreciate both responses.

MrPedantic · Answer

Very much an IMHO; but I would not agree that the whole sentence should be in the present tense. There's a difference between a description of an action, and a description of establishing negligence in that action.

Much depends upon the system of law under which you operate; but to take a fairly standard formulation:

'To establish negligence, the plaintiff must prove that:

1. The defendant owed duty X to the plaintiff;
2. The defendant failed in that duty;
3. The plaintiff suffered injury as a result of that failure;
4. The injury was a reasonably foreseeable consequence of that failure.'

Here, the 4 conditions are presented in the past tense, because they are understood to have occurred before the attempt to establish negligence.

So I would say that CalifJim's use of the past tense is correct.

MrP

Just the truth · Answer

Mr P stated; "There's a difference between a description of an action, and a description of establishing negligence in that action."

It seems to me, though I may have missed something, that Mr P has missed what has been asked, to wit;

The test, as stated by Nasuman was; "I'm stating this as a general rule, and I believe that present tense should be used."

Here are a couple more "general rules of law" that reflect the general condition. These are different I suggest than the description of "an action".

==

criminal negligence
: a gross deviation from the standard of care expected of a reasonable person that is manifest in a failure to protect others from a risk (as of death) deriving from one's conduct and that renders one criminally liable

gross negligence
: negligence that is marked by conduct that presents an unreasonably high degree of risk to others and by a failure to exercise even the slightest care in protecting them from it and that is sometimes associated with conscious and willful indifference to their rights

MrPedantic · Answer

I would disagree, JT. Your examples are about negligence, not establishing negligence.

At the point where the plaintiff wishes to establish negligence, the action (or inaction) to which that negligence relates is past. Any description of that action/inaction must therefore be presented in a past tense.

To put it another way: your present-tense formulation suggests that the defendant owes the plaintiff a duty of care at the time when the plaintiff is establishing negligence. (It also suggests that the plaintiff is a 'foreseeable victim' at the time of establishing negligence. 'Foreseeable' however means 'foreseeable at the time of the action/inaction'.)

This is clearly not the case where (for example) the plaintiff has slipped on a wet floor in a shop, and is taking legal action because no 'wet floor' signs were displayed in the shop. The defendant had a duty of care to the plaintiff to display 'wet floor' signs. But that duty was no longer operative once the plaintiff had left the shop. (Otherwise, anyone could take legal action against any shop that hadn't displayed 'wet floor' signs at some time in the past.)

Here is your second example in the context of 'establishing negligence':

'To establish gross negligence, the plaintiff must prove that the defendant's conduct presented an unreasonably high degree of risk to others and that he failed to exercise even the slightest care in protecting them from that risk in conscious and willful indifference to their rights.'

MrP

Just the truth · Answer

"At the point where the plaintiff wishes to establish negligence, the action (or inaction) to which that negligence relates is past. Any description of that action/inaction must therefore be presented in a past tense."

<<<<<<<<<<<<<<

There is NO plaintiff, Mr P, nor is there any action. Once more, in case you missed it;

The test, as stated by Nasuman was; "I'm stating this as a general rule, and I believe that present tense should be used."

These are general rules just as,

"The planets rotate around the Sun."

It matters not that they rotated a million years ago, because that's not what a general rule/condition tells us.

MrPedantic · Answer

Planetary motion is a continuing process. Negligence refers to a specific incident. I suspect that any barrister who tried to prove one from the other would get a fairly rough ride from the beak.

See e.g.:

[url="http://www.supremecourt.nm.org/supctforms/jury/VIEW/13-302F.html"]One from Many Googles[/url]

In this paragraph, we have an example of the required structure:

'To establish excuse or justification, the defendants have the burden of proving Doe violated the stop sign ordinance because the brakes on the vehicle he was driving unexpectedly and unforeseeably failed, and Doe did that which might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. If proved, this constitutes excuse or justification for what plaintiff says about Doe's failure to stop and yield the right-of-way to plaintiff's vehicle.'

The 'establishing' is a hypothetical present in relation to a hypothetical past.

MrP

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