Everyone has heard of a story where someone acted careless, someone was injured, and a lawsuit followed to compensate the injured person. Negligence is the legal theory that allows injured persons to recover for the carelessness of others. A person is negligent if they were careless given the circumstances of the situation.

How Do You Prove Negligence?

Negligence has four major parts that must be shown in order to recover for injuries. Those parts are Duty, Breach, Causation, and Damages. Even if those four parts are shown, and negligence is established, a defense might still mitigate how much a defending party must pay.


A duty is a responsibility one person owes to another. In general, people going about their business owe a duty of ‘reasonable care.’ ‘Reasonable care’ is the care an ordinary and prudent person would use in the same situation.

For example, if a person is driving during a rainstorm they would be exercising ‘reasonable care’ by driving slower and having their headlights on to increase visibility. A person would not be exercising ‘reasonable care’ if they instead were driving forty miles per hour over the speed limit.


Breach occurs when an individual’s care falls below the level required by their duty. The person driving forty miles per hour in the above example breached their duty of reasonable care by driving so quickly during a rainstorm.


The breach of a duty must be the cause of injury. The legal test for causation is a bit more complex than that, but the basic test is ‘but for’ one parties actions the injury would not have occurred.

In the above example, if the person driving too fast during a rainstorm didn’t have enough time to stop before hitting another car, then they have breached their duty of reasonable care which then caused injury to the other car.


In general, there has to be some sort of harm that occurred. The type of injury can vary, from property damage, to emotional stress, to lost wages.

All of the above need to be present in order to successfully determine that the other party was negligent. If one of the above cannot be proven, then negligence cannot be established.

What are Some Examples of Negligence?

The obvious example of negligence is personal injury, like the car crash mentioned above. However, negligence is a flexible idea that can appear in many contexts. Emotional harm, like PTSD, developing due to negligent conduct is also cause for a lawsuit.

Negligence can occur in the work setting. For example, an employer could be negligent by not giving an employee proper safety equipment which would have prevented an injury. Training and supervision can also be an area where an employer might be negligent that causes employee injury.

Businesses can also act negligently by making faulty goods that cause injury. Negligently making or designing goods for sale can also result in a lawsuit. Not testing a toaster to make sure it does burst into flames would be negligent making. Designing a toaster to be built out of flammable material would be negligent design. Both can land a business in hot water.

Lawyers are not immune to negligence claims. If a lawyer’s conduct slips below the standard level of care of lawyers (which is higher than ‘reasonable care’) then they can be sued for ‘malpractice.’

Are There Any Defenses to Negligence?

There are a variety of defenses to an allegation of negligence. The most obvious is to dispute any of the components of negligence (meaning duty, breach, causation, or damages).

Comparative and Contributory Negligence

Two related defenses are contributory and comparative negligence. Depending on state law, one or the other will apply but the general idea is the same. Both defenses ask whether the person injured is in some way responsible for the injury they suffered.

In contributory negligence jurisdictions, any negligence on the injury person is a total bar to recovery (meaning they get nothing). In a comparative negligence jurisdiction, the injured person can still recover but the recovery is reduced by how negligent they themselves were.

Assumption of the Risk

Assumption of the Risk is a defense that is essentially saying the injured person knew they were doing something inherently dangerous and chose to do it anyway. If this defense is successful, then the defending party will not have to pay for damages. For example, skiing is an activity that everyone knows could result in breaking a leg but people chose to ski anyway.

Do I Need a Lawyer If I Am Dealing with a Negligence Lawsuit?

Negligence can be a complicated and expensive problem. A local personal injury lawyer can help you through your case. From negotiations with the other party, advising you on how to proceed, to speaking on your behalf in court. It is an especially good idea to have a lawyer if you plan on fighting out the lawsuit in court.