An Overview of Negligence

An Overview of Negligence

Negligence is the basis for most personal injury cases. Generally, a person is negligent whenever their conduct deviates from how a “reasonably prudent person” should act in the same situation. For example, a reasonably prudent person will follow traffic laws and stop at red lights. Due to negligence there are several personal injuries suffered by the public daily.

Society has a standard of care that individuals owe to one another. Everyone should avoid conduct that might foreseeably cause harm to others or property. Negligence deviates from the standard of care and results in injury.

Negligence in a Personal Injury Claim

While some accidents are truly unavoidable, where no one is really to blame, in most cases, someone’s careless behavior or reckless conduct causes harm or injury to another party. Victims of such carelessness can hold the responsible party liable for their health and financial losses from the accident. After all, you should not have to pay for injuries and losses you suffered because of another person’s behavior.

Accidents happen when a party makes a careless error in judgment—it is not usually intentional behavior. Mail carriers don’t slip and fall because someone poured water on frozen steps; the homeowner simply did not de-ice the steps but did not intend for anyone to slip.

This lack of intention is why negligence is so common in personal injury—the action was accidental. But under U.S. law, accidentally does not mean the negligent party gets off scot-free—it means that the victim must prove negligence.

Elements of a Negligence Case

You cannot simply point fingers and hold someone liable for negligence. Instead, the law requires you to prove each element of negligence to prevail in an injury claim. The four elements are:

Duty: As mentioned, we all owe one another a duty of care to act reasonably and responsibly in most situations. The first step is to establish a legal obligation between you and the liable party. If the defendant had no legal obligation when the injury-inducing incident occurred, they did not act negligently.

For example, drivers owe a duty of care to others on or near the road, including other drivers, cyclists, and pedestrians. If another driver is on the road next to you, they owe you a duty of care. In most cases - but not all - proving a duty existed is fairly straightforward, though you cannot skip this step.

Breach of Duty: Once your lawyer establishes a duty of care, you must prove the party breached their duty. There are different ways to prove this.

First, if the party violated a safety law intended to prevent the harm they caused, they breached their duty. When police officers issue citations or a driver receives a conviction for a criminal offense that led to an accident, it is automatic proof that the driver breached their duty of care.

However, a driver can be negligent without expressly violating the law. What if a driver quickly looked into the back seat to check on a crying infant? Looking into the back seat is not against a specific law, but a reasonable person will keep their eyes on the road. If the distracted driver crashed into your car, you can prove breach of duty even though the driver was within traffic safety laws.

Causation: People breach duties of care regularly and face no liability. Why? Because their breach did not cause any harm. If a driver is distracted, swerves out of their lane, but manages to avoid a collision, they are not negligent. This is because negligence requires causation - that the negligent party’s conduct was the cause of the injuries in question.

First, the plaintiff must demonstrate that the breach was the actual cause of the injury. Then, they must demonstrate that the breach was the proximate cause of their injuries, which means that they must have reasonably foreseen the injuries the breach caused. Causation is a complex legal concept that an experienced personal injury lawyer should determine.

Injury: To receive compensation for injuries, a plaintiff must prove they suffered an injury or loss. This loss can be economic, physical, or both. If a loss doesn’t exist, the plaintiff cannot win a negligence claim.

In many cases, the injuries and damage are obvious following an accident. If you had no injuries, you likely wouldn’t seek legal guidance on negligence claims. However, proving injuries can be more complicated than you might think, and you want help from a skilled attorney.

Standard of Care and Duty of Care

To prove that someone was negligent, you must prove that they veered off from societal norms—like running a red light—and that action resulted in a negative consequence for someone else. Society and the courts believe that a reasonably prudent person would stop for a traffic signal, and when someone breaks that rule or norm, they have failed to provide the appropriate "standard of care."

In legal terms, the standard of care is the level of caution and judgment a reasonable person would use in a given circumstance. For the courts to consider the standard of care benchmark, the victim must first establish a duty of care exists.

A simple example of duty of care is that a driver should know that running a red light is not reasonably safe for those surrounding them, and there could be consequences if they decide to go through the light anyway. Anyone on the road has a societal relationship with that driver; therefore, they owe others on the road a duty of care.

Cause of Action

To seek compensation in a personal injury case, you need to state a cause of action. For example, if someone does not adhere to an agreement, you can state breach of contract as your cause of action. If someone intentionally hurts you, “battery” is the cause of action. When a person causes harm because they fail to meet a standard of care, the cause of action is “negligence.”

Types of Negligence

Negligence comes in two forms: ordinary and gross. Ordinary negligence is simple carelessness—you were following the vehicle in front of you too closely. Gross negligence is extreme disregard or indifference for the safety of others—texting while driving.

Four Elements of a Negligence Case

You can’t point your finger at someone and announce that they were negligent and are liable for your injuries. Your attorney will make a case using the proper evidence and elements of negligence. You must prove the four distinct elements of negligence were present to win any compensation in an injury claim.


As citizens, we owe one another the duty of care to act reasonably and responsibly. The first element we must establish is a legal duty of care between you and the other party. You don’t need to know the defendant to establish a duty to keep you safe—simply being in the vicinity is usually enough.

Breach of Duty

Next, you must prove that the defendant breached that duty. If the police issued a citation for a safety violation or a driver’s actions resulted in a criminal conviction, that can sometimes be used as proof that they breached the duty of care.

Other instances of breach of duty are not so simple. Drivers can be negligent and cause accidents without breaking any traffic laws. Distracted driving is a great example of this type of negligence. If a driver looks in the rearview mirror to check on a child, their eyes are off the road for enough time to rear-end your car. It’s not illegal to peep in the back seat, but a reasonable person keeps their eyes on the road. A parent can argue that their child’s safety is paramount, but the law is on your side.

Here are other examples of individuals who breach the duty of care.

  • Doctors who provide incorrect or inadequate care and injure a patient
  • Drivers who text, speed, or drive under the influence
  • Property owners who don’t fix dangerous conditions on their property


To receive any damages from the defendant, you must prove their action harmed you. To prove negligence in a personal injury claim, you must show causation—the action caused injury or harm. If there is no accident or injury, there cannot be causation.

People ignore their duties of care every day, and there is no liability because there is no harm or injury. A driver who swerves into another lane to avoid a collision and does not cause an accident is not negligent.

Causation is a complicated legal concept. You must prove that the breach was both the actual and proximate cause of the injury, meaning that the defendant should have reasonably foreseen the consequences of their actions. An experienced personal injury attorney can determine and show causation with better insight than a layperson.


The key to receiving compensation for injuries is to have suffered an injury or loss. Physical injury is only one of the standards to determine loss; you can also seek compensation for economic loss. Damage to your car and injuries you sustained following an accident are obvious grounds for compensation based on negligence. However, it’s not always easy to prove that the other driver was responsible for all of your injuries, especially if the accident exacerbated a pre-existing condition. You need an attorney’s skills to ensure you get compensation for all your injuries, not just the immediately visible ones.

Awarding Damages

A plaintiff who can prove the elements of negligence is entitled to damages. Damages compensate the plaintiff financially and should put them in their position before the injury - or as close as possible.

There are different types of damages, and they vary in each case.

Damages might compensate for:

  • Medical bills
  • Costs of future medical treatment
  • Lost earnings
  • Intangible losses like pain and suffering
  • Permanent disabilities

Even if you can prove negligence and liability, you will need to prove your damages. Many injury disputes arise after you prove negligence because the liable party questions your damages. Always have an experienced personal injury lawyer calculating and proving the value of your claim.

Contact a Personal Injury Attorney Today

Emroch & Kilduff Negligence Attorneys
Emroch & Kilduff Negligence Attorneys

If someone else caused your injuries, never wait to consult with a personal injury lawyer. A lawyer can review your situation and determine whether you can prove negligence and damages. If you can, you should receive compensation for your injury-related losses and move forward in a better financial situation.

You must meet specific requirements to receive compensatory damages in negligence cases. Proving the elements of the case can require the help of a skilled personal injury attorney.

William B. Kilduff


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