What is Negligence?


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In most personal injury cases, the person who has suffered an injury relies on the legal concept of "negligence" to establish another person's fault for the underlying accident. So, what is negligence? It may be best explained through an illustration of some of the key elements that go into any negligence claim: duty of care, and the "breach" of that duty.

"Duty of care" is a legal term that refers to the responsibility one person has to avoid causing harm to another. In a personal injury claim or lawsuit, the first step in proving that another person was negligent is to establish that he or she had a duty of care in the situation that gave rise to the injury. The injured person (the plaintiff) will then need to show exactly how the other party (the defendant) failed to meet that duty -- in other words, how the defendant's conduct "breached" the duty of care. Once this breach is established, the last step in proving negligence is to show that the plaintiff suffered real injuries that were caused by that breach.

In the sections below, we'll take a closer look at these key elements of a personal injury claim or lawsuit.

Duty of Care and Personal Injury Lawsuits

For a plaintiff in an injury case, demonstrating a breach of care requires showing that actions taken or not taken by the defendant failed to meet the required level of reasonable care under the circumstances. But what exactly is the appropriate standard of care in a given situation, or in different types of personal injury cases? It depends on the facts of each individual cases. But let’s look at a traffic accident -- and a resulting insurance claim or personal injury lawsuit -- as an example.    

A vehicle driver has a legal duty to operate his or her vehicle with reasonable care at all times, which includes taking into consideration factors like traffic conditions, weather, and visibility.  

State legislatures have enacted vehicle codes and traffic codes which identify drivers’ legal obligations in some situations (yielding) and prohibit certain driving-related conduct in other scenarios (driving above the speed limit). So in most cases, if Driver A violates a driving law, he or she will be said to have breached the duty of care to other drivers, passengers, and pedestrians, if Driver A’s conduct caused an accident in which others were injured.    

Here are some more examples of the duty of care in other kinds of injury-related cases:

  • In a slip and fall case, a property or business owner has a legal obligation to keep the premises free from known hazards, and must act within a reasonable time to discover and remedy other dangers as they present themselves.
  • In a medical malpractice case, a doctor or other medical professional must provide treatment with the same level of skill and care that a reasonably competent health care provider would act with under similar circumstances (here you look to the prevailing medical standards and practices in the same field or medical specialty, which is often established by medical expert witnesses).
  • In a defective product case, the manufacturer, distributor, and seller of a consumer product all have a legal duty to produce and sell products that are free of unreasonable or unexpected dangers to consumers.   

Establishing Fault

Once the duty of care is established, the plaintiff’s job (usually through his or her attorney) is to establish exactly how the defendant violated (or "breached") that standard of care. What did the defendant do (or fail to do) that made his or her conduct unreasonable under the circumstances? In other words, how exactly should the defendant be considered legally at fault for causing the plaintiff’s injuries?

Going back to the car accident example, fault can be established by:

  • showing that the defendant violated a traffic law (maybe a police officer’s report contains such a finding)
  • by the testimony of eyewitness to the accident,
  • by the plaintiff’s own testimony as to what happened, and
  • by the examination of evidence at the accident scene, including vehicle damage.   

In some cases, the plaintiff’s own conduct may have played a role in causing his or her injuries (alongside the defendant’s own negligence). Continuing with the car accident scenario, the defendant may have indeed made an abrupt left turn in front of the plaintiff’s vehicle (a clear example of negligent driving) but if the plaintiff was driving a few miles an hour over the speed limit, the insurance adjuster or the jury might decide that the plaintiff’s own negligence was at least a factor in causing the accident. In that case, the plaintiff’s total compensation or damages award will be reduced by an amount equal to the percentage of his or her fault. That’s the rule in most states. (Learn more about comparative fault.) But in a few states that follow a system known as contributory negligence, if a plaintiff is found to be even one percent to blame for causing the accident, he or she won’t be able to collect any damages at all from other at-fault defendants.

The last step in establishing negligence is to show how the plaintiff was harmed by the defendant's action (or inaction). We've got this element covered in other sections of this website: Learn more about injury damages and the damages formula.    

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