In legal terms, negligence refers to a failure to use reasonable care, with that failure resulting in the damage or injury of another person. This area of law is different from other areas because it is based on a person’s failure to take certain precautions, whereas other areas of law focus on a person’s direct actions.

A common example of negligence is when a driver of a speeding vehicle causes an accident. The driver may be negligent because they failed to use the same care as that of a driver abiding by the speed limit.

How Can I Prove Negligence?

In order for a plaintiff to bring a negligence based lawsuit before a court, they must be able to prove all four elements of a negligence claim. These four elements are:

  1. Duty: Generally, a duty of care is owed to another person in any situation in which there is a possibility that other person can foreseeably be injured due to your actions. According to the law, all persons have an obligation to protect another person from unreasonable risk of harm and injury. Some groups of people have a higher duty of care and are held more liable in order to ensure the safety of the people in their care; this includes lifeguards, doctors, and drivers.

    This “duty to act” is viewed by the majority of courts as the defendant only being held liable to potential plaintiffs who are within the “zone of foreseeable harm.” Additionally, the standard of care that  is owed needs to be determined; typically, this is determined by what a “reasonably prudent person” would do. “Reasonable” is the key term when determining duty;

  2. Breach of Duty: A breach occurs when a person does not act as reasonably and prudent as another person would under the same circumstances. The duty of care is typically established based on an understanding by both parties. Once the duty is established, the plaintiff is required to show that the defendant breached their duty to exercise reasonable care. The standard to prove a negligence case is by a preponderance of the evidence; meaning, the evidence must show a greater probability than not that the defendant breached their duty. As the lowest standard of proof, it is easily proved if the defendant has already been criminally convicted;

  3. Causation: It must be proven that the negligent act was the actual and proximate cause of  the injuries being claimed. This is called causation, and there are several factors considered when determining if the act was, in fact, the cause of the injury sustained. The “but-for” test is one type of test used by the court; they must show that the injury would not have occurred “but for” the defendant’s negligent actions. Other substantial factors used in determining actual causation include whether there were several harms, and which harm did the most damage. Another factor is whether there were multiple and indeterminate tortfeasors, which refers to other people who may have been involved in causing the harm.

    Proximate cause refers to a test of foreseeability and helps determine if the defendant was acting within the scope of their liability. Generally, the 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. It is important to first determine proximate cause because it is unfair to hold a person liable for remote and unpredictable injuries or damages; and

  4. Damages: Once the other three conditions have been met, the plaintiff must prove that there was some quantifiable loss or damage as a result of the failure to exercise due care. Damages may be physical, such as personal injuries; economic, such as monetary and financial losses, including time missed at work due to the incident; or, a combination of the two. While it is possible to claim damages for emotional distress, the plaintiff must have also suffered some sort of physical manifestation of damages or ailments. There is a different claim for intentional infliction of emotional distress, which is classified as an intentional tort and differs from negligence claims.

Additionally, a plaintiff may be entitled to punitive damages if they request it from the court. However, it is the court’s discretion to award any punitive damages, and they are typically only awarded for serious and outrageous claims. Each state will have their own laws regarding the burden of proof needed to be awarded punitive damages.

Do I Need an Attorney for Help with a Negligence Claim?

Whether you are an injured party or the defendant, it is in your best interest to consult with a knowledgeable and skilled personal injury attorney. They will help you understand if there are any defenses available given your specific circumstances, and can guide you through your case.

Common defenses to negligence may include contributory or comparative negligence, or assumption of risk. Additionally, a personal injury attorney can help gather facts, witnesses, and experts. Lastly, they can help you understand the laws according to your state.