In the legal context, the term negligence refers to the failure of an individual to use reasonable care that results in injury or damage to another individual. A court will determine the meaning of reasonable care by comparing the conduct of the defendant to the actions of other reasonable individuals in the same or similar situations.

Negligence is one of the primary claims that arises in tort law. Because of this, negligence claims are commonly included in personal injury claims.

The two main categories of torts include intentional torts and strict liability torts. Intentional torts occur when a defendant acts intentionally to injure a plaintiff.

Strict liability torts are actions for which a defendant can be found strictly liable based upon their conduct rather than based upon their intentions. When a claim of negligence arises, a plaintiff is responsible for proving that the defendant was negligent.

There are four elements a plaintiff is required to show in order to prove a defendant was negligent, including:

  • Duty;
  • Breach;
  • Causation; and
  • Damages.

How Do You Prove Negligence?

A plaintiff can prove negligence by showing the four elements noted above. Duty is the first element that the plaintiff is required to prove.

To prove negligence, plaintiffs are required to show that the defendant had a specific duty which they owed to the plaintiff. In cases which involve a professional or a business party as a defendant, proving a duty exists will likely involve:

  • Assessing the applicable standards of professional conduct;
  • Duties to ensure customer safety; and
  • Other applicable standards.

Breach is the second element of negligence. Once the plaintiff proves that the defendant owed them a duty of reasonable care, the plaintiff is then required to show that the defendant breached the duty which they owed the plaintiff.

This can be accomplished by analyzing whether a defendant was able to foresee the possible risks that could have impacted the plaintiff’s health or safety. Causation is the third element the plaintiff is required to prove.

The plaintiff is required to show that the defendant’s breach was both the actual and immediate cause of the injuries to the plaintiff. The defendant may be able to reduce their liability if they can show that there were other factors which were present that also contributed to the injuries the plaintiff suffered.

The plaintiff must be able to quantify the damages that they suffered. This means that they must be able to quantify their damage into actual, verifiable amounts.

For example, if a plaintiff is injured during a surgery, they are required to calculate the amount of money which would be required to fix their injury, such as the cost of having a second surgery. It is important to note that there are several defenses that may be available to a defendant that may reduce or even preclude a plaintiff’s claim for negligence.

The defenses to a claim of negligence often include a specific defense, such as contributory negligence or comparative negligence. These two defenses may serve to reduce the liability of a defendant because the plaintiff was also, in part, responsible for their own injuries due to their own negligence.

What is Contributory Negligence?

Contributory negligence is the older of the two negligence theories as it dates back to English common law. The legal doctrine of contributory negligence provides that if the plaintiff is determined to be negligent as related to the incident at issue, they will not be able to recover any damages from a defendant.

This is referred to as a total bar to recovery. If the court or jury determines that the plaintiff was even as little as 1% responsible for their own injuries, they will receive no compensation. This may seem to be an extreme approach.

This approach has been replaced gradually over the years by other rules in numerous states. There are a few remaining jurisdictions which still follow the pure contributory negligence rule, including:

  • Alabama;
  • Maryland;
  • North Carolina;
  • Virginia; and
  • Washington D.C.

What is Comparative Negligence?

In the remaining states that do not follow contributory negligence, the comparative negligence system is used. There are three categories of comparative negligence, which include:

  • Pure comparative negligence;
  • Modified comparative negligence, or the 50% rule; and
  • Modified comparative negligence, or the 51% rule.

Pure comparative negligence allows a plaintiff to recover, even if the plaintiff is 99% at fault for their own injury. The amount of damages they will receive is reduced by their percentage of fault.

States that follow the comparative negligence rule include:

  • Alaska;
  • Arizona;
  • California;
  • Florida;
  • Kentucky;
  • Louisiana;
  • Mississippi;
  • Missouri;
  • New Mexico;
  • New York;
  • Rhode Island;
  • South Dakota; and
  • Washington.

The 50% modified comparative negligence rule bars the plaintiff from recovering if it is determined that they were 50% or more at fault for their injury. It is important to note that the damages may still be reduced based on the plaintiff’s fault percentage.

States that follow the 50% modified comparative negligence rule include:

  • Arkansas;
  • Colorado;
  • Georgia;
  • Idaho;
  • Kansas;
  • Maine;
  • Nebraska;
  • North Dakota;
  • South Carolina;
  • Tennessee;
  • Utah; and
  • West Virginia.

The 51% modified comparative negligence rule is identical to the previous rule, except that the percentage of the plaintiff’s negligence that bars their recovery is slightly higher. The idea behind this rule is that if the parties were equally at fault, an injured party should still be able to seek compensation, even if that compensation is reduced.

States that follow the 51% modified comparative negligence rule include:

  • Connecticut;
  • Delaware;
  • Hawaii;
  • Illinois;
  • Indiana;
  • Iowa;
  • Massachusetts;
  • Michigan;
  • Minnesota;
  • Montana;
  • Nevada;
  • New Hampshire;
  • New Jersey;
  • Ohio
  • Oklahoma;
  • Oregon;
  • Pennsylvania;
  • Texas;
  • Vermont;
  • Wisconsin; and
  • Wyoming.

There are some states that follow a combination of these rules. Because of these variances, it is important to consult with an attorney if an individual is considering filing a claim because the applicable rule may affect what approach is best for their case.

What is an Intervening Cause?

Intervening causes serve as defenses to negligence claims. If an event occurs following a defendant’s act that is unforeseeable and causes the plaintiff’s injury, it may cut off the liability for the defendant’s conduct.

Negligence claims require that a defendant’s action caused the injury and that the injury was reasonably foreseeable. Intervening causes may break the connection between the plaintiff’s injury and the defendant’s action, and therefore destroys the negligence claim.
However, if the intervening cause is foreseeable, the defendant will still be held liable. In certain jurisdictions, intervening causes that remove liability are referred to as superseding causes.

There are two categories of intervening causes, including:

  • Dependent intervening causes: These are set in motion by the defendant and will typically not relieve the defendant of liability unless it is an extraordinary response. This is. by definition, very rare; and
  • Independent intervening causes: These are events which arise totally independent of any action by a defendant. If the event is unforeseeable and causes harm to the plaintiff, it relieves the defendant of liability.

What is Considered an Intervening Cause?

The most common forms of intervening cause that are cited by defendants include acts of nature and criminal conduct. Acts of nature include:

  • Weather;
  • Earthquakes; and
  • Animals.

If the weather was reasonably foreseeable, however, the defendant will not be absolved of liability. Therefore, if a weather report warned of bad weather or if it was obvious to an average individual that the weather would be bad, the defense would not succeed.

Criminal conduct by a third party may also remove liability, so long as the defendant did not negligently contribute to the criminal conduct. For example, if a defendant borrows a vehicle and then leaves the keys in the ignition and the car is stolen because the defendant did not take basic, reasonable precautions, the defendant negligently contributed to the criminal act.

Do I Need a Lawyer?

The laws governing negligence are very complex and may differ immensely by state. It may be helpful to consult with a personal injury attorney who will be able to advise you of the law in your jurisdiction.

If you are the defendant, your attorney can advise you regarding any defenses which may be available to the claim made against you. Whether you are the plaintiff or defendant, your lawyer will represent you if you are required to appear in court.