Find the right lawyer now

Negligence | LegalMatch Law Library

Find a Local Personal Injury Lawyer near You

What is Negligence?

Negligence occurs when a person fails to take reasonable care and it results in damage or injury.  This area of law is different than others because it is based on a person’s failure to take certain precautions resulting in harm to another.

Most other areas of law focus on 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.

In order for a plaintiff to bring a lawsuit they must be able to prove all of the elements of a negligence claim. The four elements of a negligence claim are:

  1. Duty;
  2. Breach;
  3. Causation; and
  4. Damages.

What is Duty?

In general, a duty of care is owed to another in any foreseeable situation where there is a possibility they can be injured from your actions. Under the law, all persons have an obligation to protect another person against unreasonable risk of harm and injury, which can include future harm.

The courts have different views on what constitutes a “duty to act”. The majority view states that a defendant is only liable to potential plaintiffs who are within the “zone of foreseeable harm”. The minority view states that anyone who is harmed as a result of a defendant’s actions is a potential plaintiff, whether the damage is foreseeable or not.

Another aspect of duty is determining what the standard of care owed is. In most cases, the standard of care owed to a plaintiff is determined by what a “reasonably prudent person” would do. The courts traditionally defines “reasonable” as what another, average person would do in a similar situation. This includes any special skills and abilities.

Since certain groups of people such as lifeguards, doctors, and drivers have a higher standard of care and are more liable to ensure the safety of the people in their care. However, a person without any special skills or training would not be compared to a “reasonable” person who does.

For example, if a person is a physician and they potentially breached their duty, the court would ask what would a similar physician with a similar level of medical training do in the same situation. Other factors such as mental state, age, and disabilities may also be taken into account. Intoxication is not an excuse or exception for negligence.

What is a Breach?

Once a duty has been established, typically due to some sort of understanding between the plaintiff and defendant. After establishing duty, the plaintiff is required to show that the defendant breached their duty to exercise reasonable care. A breach occurs when a person does not act as a reasonably prudent person would in the same situation.

The standard for proof is by a “preponderance of the evidence” which means that the evidence must show a greater probability than not that the defendant breached their duty. This is the lowest standard of proof, and can be easy to prove if the defendant has already been criminally convicted.

What is Causation?

A successful negligence claim must also show that the negligent act of a defendant was the actual and proximate cause of the injuries. Actual cause is also known as “cause in fact” and there are several factors used to determine if the act was in fact the cause of the injury sustained. The most common test used is called the “But-for” test.

This is test is used to show that the injury would not have occurred “but for” the defendant’s negligent actions. For example, but for the driver speeding, there would be no accident or injuries. Other factors used to determine actual causation include substantial factors (if there were several harms, which harm did the most damage) and multiple/indeterminate tortfeasors (if other people who involved in causing the harm).

Proximate cause is a test of foreseeability and helps determine if the defendants act was within their scope of liability. This is important to determine as it is unfair to hold a person liable for remote and unpredictable injuries or damages.

The general rule is that there must be actual cause in order for proximate to exist, but proximate cause may not exist if there are other intervening acts.

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, then the driver may not be the proximate cause of the pedestrian's injuries because they could not have known the truck was carrying explosives.

What are Damages?

Finally, if all of the above elements are proven the plaintiff must then prove that there was 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 a combination of the two. Most damages resulting from negligence result in a monetary award.

Most importantly damages must be concrete. While it is possible to claim damages for something like emotional distress, if you are suing for negligent emotional distress then the plaintiff must have suffered some sort of physical ailment. Like, such severe emotional distress that they collapsed and needed treatment.

There is a different claim called “intentional infliction of emotional distress” which is an intentional tort. Intentional torts are like negligence claims, as in they are both in the category of personal injury. But intentional torts have different requirements and are unique to each situation.

A plaintiff may be entitled to punitive damages, if they request it from the court. However, awarding punitive damages is at the discretion of the court and is typically only given in serious and outrageous circumstances. The burden of proof for punitive damages can vary from state to state, which means some states can require a higher burden of proof.

Are There Any Defenses to Negligence?

Negligence, as a type of liability, can utilize the same defenses as in other civil liability cases. You can read more about the different defenses here:

Should I Consult an Attorney about Negligence?

If you are an injured party or a defendant in a negligence case it would be highly advisable to consult a personal injury attorney near you. They can help gather facts, witnesses, experts and as well as building your defense. As established attorney can help explain the laws, set up your case, and guide you through the process.

Photo of page author Amanda Wiseman

, LegalMatch Legal Writer

Last Modified: 07-12-2018 01:03 PM PDT

Law Library Disclaimer
  • No fee to present your case
  • Choose from lawyers in your area
  • A 100% confidential service
What is LegalMatch?

We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.