As discussed in the video below, negligence is what people in an everyday conversation would call carelessness or an accident. Negligence is a type of tort – – an unintentional tort.

Because it is a tort, plaintiffs who have been injured as a result of negligence have the right to recover for their injuries in a civil lawsuit.

To prevail in a claim for negligence, plaintiff must prove the four elements of negligence: (i) defendant owed a duty of reasonable care to plaintiff; (ii) defendant breached that duty; (iii) defendant’s  breach of his duty caused; (iv) plaintiff’s damages.


By duty we mean that defendant had an obligation to plaintiff to take reasonable steps to avoid causing the type of injury that plaintiff suffered.

Law professors have written a fair amount about the concept of duty and whether it is necessary to include it as an element of a negligence claim.  This post will avoid getting into philosophy and instead we’ll note that for most courts, the concept of duty is based on foreseeability.  That is, should defendant have foreseen that his action, or inaction, could harm plaintiff.

For example, if a person drops a banana peel on a staircase, it is foreseeable that someone will slip on the banana peel.  Court would agree that a person walking on a staircase has a duty to avoid harming  other people who use the staircase by carelessly dropping things on the stairs.


Next, we need to analyze whether defendant breached his duty of care.  We will compare our defendant to a reasonable person.  This made-up person, the reasonable person, always takes the appropriate amount of care to prevent accidents.

For example, let’s say it is 3:00 in the morning and a driver decides to go through a red light without stopping.  The driver collides with another car in the intersection.  We would say the driver breached his duty of care because a reasonable driver, under the same circumstances, would have stopped at the red light.

But let’s say the driver tries to stop but his brakes fail.  He swerves but cannot avoid the accident.  The driver is almost certainly not liable because he did what a reasonable person would do  – – he tried to brake.  A reasonable person would not be expected to, say, check his brakes several times during the course of a drive to insure the brakes are in perfect working order.

If a mechanic worked on the brakes the day before and failed to properly fix them, the mechanic might be liable if he failed to meet the standard of care we would expect from a reasonable mechanic under similar circumstances.


People are careless all the time but they are not liable for negligence because their carelessness ends up being harmless.  Luckily, no one got hurt.

However, if a defendant breached his duty of care and that breach caused an injury, then defendant will be liable for negligence.

Courts usually consider two types of causation: actual cause and proximate cause.  Actual cause is sometimes referred to as “but for” causation.  A court will ask, “but for” defendant’s action or inaction, would the plaintiff have been injured?  If but for defendant’s action or inaction the plaintiff would not have been hurt, we say that the defendant actually caused the injury.

Proximate causation is also known as legal causation.  As a general rule, plaintiff’s injury should be close enough in time and space to be tied to defendant’s breach.  For example, if a defendant carelessly engages in an activity that causes a chain of events that results in plaintiff’s injury ten years later, a court will likely conclude that defendant was not the proximate cause of the injury.


Plaintiff must actually suffer damages to prevail in a negligence lawsuit.



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