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Negligence

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What Is Negligence?

Negligence is the failure to use the amount of care that an ordinary person would in similar circumstances. Negligence differs from other areas of the law in that it is based on a person’s failure to take certain precautions causing harm to another, rather than from a person’s direction action.  For example, the driver of a speeding car that causes an accident may be negligent because he failed to use the same care that a normal driver would. Negligence has five elements:

  • Duty

A person owes a duty of care to another when a reasonable person could foresee the possibility of injury from their acts. Other factors, such as preventing future harm or cost of insurance, can also be used to establish duty. Many states have different tests for determining the existence of a duty of care. In our example, the driver owes a duty of care to anyone around him, including other drivers, pedestrians, and even surrounding land and buildings. 

Standards of care may differ depending on factors such as expertise or age. For example, in a pedestrian accident, a five year old cannot be expected to look at both sides of the road before crossing the street.

  • Breach of Duty

Negligence requires a breach of the duty to exercise due care. This occurs when a person actually knew that he was putting someone at risk or when a reasonable person in the same situation would have foreseen the risk to others.

  • Cause in Fact

The negligent act must be the actual cause of the injuries. This is usually proven by the "but-for" test. "But for" the negligent conduct, there would be no injury or loss sustained by the other person. For example, but for the driver speeding, there would be no accident or injuries.

  • Proximate Cause

Proximate cause is a test of foreseeability. This prevents a person being liable for remote and unpredictable injuries or damages. The general rule is that only reasonably foreseeable damages or injuries are the liability of a negligent individual. For example, if our speeding driver were to collide with a truck which, unknown to the driver, was carrying explosives which blew up and caused a traffic light a mile away to fall and strike a pedestrian, the driver may not be the proximate cause of the pedestrian's injuries because they were not foreseeable. 

  • Damages

Finally, there must have been some loss or damage as a result of the failure to use due care. 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 – plaintiff contributed to his own harm, thereby negating the claim that the defendant was the cause of the harm.
  • Limitation of liability – certain statutes and/or terms in a contract may limit the plaintiff’s ability to sue for negligence.
  • Assumption of risk – the plaintiff knew about and accepted the risks of injury before taking part in an action which resulted in harm.
  • Any other argument which would invalidate one of the elements of negligence listed above. For example, in automobile accident cases, it is common for insurance companies to claim that a physical injury, such as sore necks or back pain, was caused by a previous injury and not by the car accident.

Should I Consult an Attorney about Negligence?

Negligence can be complicated and difficult to prove. Additionally, there may be defenses which can bar recovery. A good personal injury attorney can help explain the law and set up your case.

Photo of page author Peter Clarke

, LegalMatch Content Manager

Last Modified: 05-15-2017 11:14 PM PDT

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