Negligence is a legal claim which arises when someone is harmed because of another individual’s carelessness or failure to exercise the same level of care that an ordinary individual would exercise under similar circumstances.

What are the Elements of Negligence?

In order to prevail in a negligence case, the plaintiff has to prove the following four elements to show that the defendant acted in a negligent manner:

  • Duty: It is necessary to show that the defendant owed the plaintiff a legal duty of care under the circumstances. The duty of care can arise from different factors such as the relationship between the plaintiff and the defendant. 
    • For example, a doctor has a duty to provide a patient with competent medical care. The duty of care can also be based on a certain type of situation. 
    • For example, when driving a motor vehicle, the individual is expected to operate it safely and with a certain level of due care.
  • Breach: This means that the defendant breached their duty of care by acting or failing to act in a certain way. To determine if someone breached their duty of care, a court will use the “reasonable person” standard which is based on how an average individual would responsibly act in a similar situation. 
    • If an average person would have acted differently in that situation to avoid causing injuries, then the defendant will be found negligent.
  • Causation: It is also necessary to show that the defendant’s actions actually caused the plaintiff’s injuries. The two types of causation are “cause in fact” and “proximate cause”. Cause in fact is based on whether the negligent act was the actual cause of the injuries and it can be proven by using the “but for” test, in other words by asking “but for the actions of the defendant, would the injury have happened?” 
    • For example, if the driver did not run the red light, there would not have been a car accident. Proximate cause is based on whether the defendant could have reasonably foreseen that their actions might cause an injury. 
    • For example, if the defendant somehow caused the plaintiff injury through a random and unexpected series of events, then the injuries may be considered unforeseeable and the defendant may not be found liable.
  • Damages: This means that there was some loss or damage because of the negligent action and the court would be able to compensate the plaintiff, usually through monetary compensation.

What are the Defenses to Negligence?

However, there are defenses available to someone accused of negligence. The major defenses to negligence are:

  • Contributory Negligence: This occurs when a plaintiff fails to take reasonable precautions which then combined with the defendant’s negligence to cause injuries to the plaintiff. In other words, the plaintiff would likely have avoided the injuries if they were also not negligent. 
    • One example would be if someone else’s car crashes into your car because the other driver was going beyond the speed limit but you did not take proper steps to avoid the collision because you were texting while driving. The doctrine of “pure contributory negligence” is used by some states. 
      • Under this doctrine, even if the victim is only 1 percent at fault, they can be denied compensation. There is a exception to the contributory negligence defense called “last clear chance” where the defendant will still be held liable even if both parties were negligent if the defendant could have avoided the injury using ordinary care. 
      • But in general, the doctrine of contributory negligence can lead to harsh results because a plaintiff who was just a little bit careless can be completely denied compensation for their injuries. Because of this, many states have replaced the contributory negligence defense with the defense of comparative negligence.
  • Comparative Negligence: The doctrine of comparative negligence reduces a plaintiff’s recovery by the percentage in which the plaintiff is at fault for the incident which led to the injuries.
    • A majority of states have modified this rule and they bar a plaintiff from recovering compensation if the plaintiff is as much at fault or more at fault than the defendant. There are different types of comparative negligence such as “pure” or “modified”. 
    • Under pure comparative negligence, the plaintiff is awarded a percentage of the damages for which the defendant is responsible while under modified comparative negligence, the plaintiff is awarded damages only if their negligence is equal to or less than the defendant’s negligence.
  • Assumption of Risk: If a plaintiff assumes the risk involved in an activity which is obviously dangerous but proceeds to engage in that activity anyway, then the plaintiff may not be able to recover compensation. 
    • But for this defense to apply, the plaintiff must have had actual, subjective knowledge of the risk involved in the activity and the plaintiff must have voluntarily accepted the risk involved in the activity.

Should I Contact a Lawyer If I am Facing a Negligence Claim?

If you were involved in an accident which led to injuries either to yourself or to someone else, it is important to consult with an experienced personal injury attorney. An attorney can determine if all the elements of negligence have been met and if any defenses to negligence apply in the particular situation.