Negligence is a legal claim that arises when a person is harmed because of another’s failure to exercise the same level of care that an ordinary person would exercise in the same circumstances. Essentially, negligence claims potentially allow you to recover damages if you are injured because of someone else’s carelessness. Some typical negligence cases include: 

  • Slip and fall injuries;
  • Products liability claims;
  • Medical malpractice cases; and
  • Auto accident lawsuits.

 What are the Elements of Negligence?

To recover in a negligence action, you must prove five essential elements:


  • Duty - The injured party must show that the defendant owed them a specific duty of care. For most professionals and business persons, this usually involves standards of professional conduct, duties to ensure customer safety, or a basic responsibility to not recklessly injure others around you.
  • Breach of Duty - Negligence requires a breach of the duty to exercise due care. The duty of care is breached when a person acts in a way that: 
    • they know may cause harm to another; or 
    • a reasonable person would know may cause harm to another.
  • Cause in Fact - The negligent act must be the actual cause of the injuries. Generally, this can be proven by using the “but for” test. Ask the question: but for the actions of the negligent party, would the injury have happened. For example, but for the driver running the red light, there would not have been a car accident.
  • Proximate Cause - The injury must have been a foreseeable consequence of the negligent action. Individuals can only be held responsible for damages that are likely to happen because of their conduct. 
    • For example, it would be foreseeable if a speeding driver hits a truck and causes injuries to the truck driver. However, what if that same truck happened to be carrying fireworks that are then set off, travel two miles, knock down a tree, and injures a pedestrian. The injury to the pedestrian would not be foreseeable and the speeding driver likely would not be liable for their damages.
  • Damages - There must have been some loss or damage as a result of the negligent action. Damages may be physical, such as personal injuries, economic such as monetary and financial losses, or some combination of the two.

Are There Any Defenses to Negligence?

Negligence, as a type of liability, can utilize the same defenses as in other civil liability cases. Some defenses against negligence include:

  • Contributory Negligence - The damages that an injured party may receive can be reduced or eliminated completely if the injured party was partially responsible for their injuries. For example, if a pedestrian is injured by a speeding driver but they were hit while jaywalking.
  • Limitation of Liability - Certain statutes and/or terms in a contract may limit the plaintiff’s ability to recover for the defendant’s negligent acts.
  • Assumption of Risk - the plaintiff knew about or accepted the risks of injury before taking part in an action which resulted in harm. For example, participating in an intramural hockey league may indicate an assumption of risks inherent to the sport such as falling on the ice or getting hit with a hockey puck.
  • Any argument that would invalidate one of the elements of negligence listed above. For example, an insurance company will often argue that an injury claimed from an automobile accident was caused by a previous injury and not the accident itself.

Do I Need a Lawyer to Help Me with my Negligence Case?

Proving negligence can be complicated and there may be defenses that can bar recovery. An experienced personal injury lawyer can review your case and determine if you have a legitimate claim for damages. In addition, a skilled attorney can gather evidence, recruit experts, and advocate for you in court.