From LegalLanding

Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up") is a legal concept in the common law legal systems mostly applied in tort cases to achieve monetary compensation (damages) for physical and mental injuries.

Negligence is a type of tort or delict (also known as a civil wrong). "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm.

Through civil litigation, if an injured person proves that another person acted negligently to cause her injury, she can recover damages to compensate for her harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, negligence cases are very fact-specific, and this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.


Elements of Negligence Claims

Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. An important concept related to elements is that if a plaintiff fails to prove any one element of her claim, she loses on the entire tort claim. For example, if a particular tort has five elements, then each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff will lose her claim.

Common law jurisdictions may differ slightly in the exact definitions, or classifications, of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking.

Duty of Care

Because each of the 50 U.S. states is a separate sovereign free to develop its own tort law under the Tenth Amendment, and because Erie Railroad Co. v. Tompkins (1938) ruled that there is no general federal common law (thus implying no general federal tort law), there are several tests for finding a duty of care in United States tort law.

Foreseeability Test

In many states, like Florida and Massachusetts, the only test is whether the harm to the plaintiff from the defendant's actions was foreseeable.

Balancing Test

California has developed a complex balancing test consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action. The underlying facts are universalized and analyzed in the larger context of general public policy.

Breach of Duty

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care.

Actual Cause

For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. The notion sounds simple, however, the causation between a person's breach of duty and the harm that results to another can be complex at times. The basic test is to ask whether the injury would have occurred "but for", or without, the accused party's breach of the duty owed to the injured party. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Proximate Cause

In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held not just the actual physical and temporal cause, but also the legal cause of a given injury. This actual cause is the first phase of proximate cause, and that means "but for" the action, the result would not have happened. The act causing injury must have been the but for cause plus the end result has to be fairly foreseeable to the actor at the time she acted. Proximate cause adds this element of reasonable foreseeability to the but-for test to determine whether it would be fair to hold an actor responsible for the full consequences of the resulting harm. Proximate cause is, in effect, a policy cut-off line that acts as a legal limitation on 'but for' cause, or cause-in-fact. A worker under the bridge may carelessly be the 'but for' or actual cause of the spark that ignited, but should he be held responsible for the entire bridge collapse when such was not reasonably foreseeable? A court could find insufficient proximate cause to hold him liable.


Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). For most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.

Damages are compensatory in nature. Compensatory damages address a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was in before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

Types of Damage

  • Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include: lost wages, medical bills, and damage to property such as your car.
  • General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from an car accident. Where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages, sometimes the symbolic $1 you read about in the news.
  • Punitive damages - Punitive damages are to punish a defendant, they are NOT to compensate plaintiffs in negligence cases. Therefore, punitive damages are NOT obtainable in a negligence case. Punitive damages are awarded only in cases where a defendant has been found "guilty" of intentional, reckless or malicious wrongdoing, such as fraud, defamation or false imprisonment. Think about a car accident where there is bodily injury. If the defendant driver was negligent (ran a red light), then punitive damages cannot be awarded. But if the defendant driver was drunk, then punitive damages could be awarded.


The plaintiff must prove each element to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment. The ability to resolve a negligence case without trial is very important to defendants. Without the specific limits provided by the four elements, any plaintiff could claim any defendant was responsible for any loss, and subject him to a costly trial.

The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the finder of fact to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of the disputed facts, if any, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.

On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the disposition of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the lower court properly found that the plaintiff could not prove any or all of her case.