Negligence is one of the most common personal injury causes of action. The term is so common that people often throw it around without fully understanding what it means.
Let’s take a close look at negligence, gross negligence, negligence per se, and contributory and comparative negligence.
The majority of accidents happen because someone is careless. If this carelessness falls below a legally recognized standard, the person’s conduct is considered “negligent” and the person is liable for any damages caused by their negligent conduct.
Common examples of negligence include:
To prove negligence, the plaintiff (the injured party) must establish 3 elements:
Let’s take a closer look at each of these 3 elements:
In most situations, the law imposes a duty on people to act with “reasonable care” (sometimes called “due care”) while performing acts that could foreseeably harm others.
What is reasonable care?
Reasonable care is the level of care that a “reasonably prudent person” would exercise in the same or similar situation.
In some cases, however, the standard of care owed is more specific than the general duty to exercise reasonable care. For example, in some states, premises liability laws dictate that property owners owe visitors certain specific duties (such as searching for dangerous conditions before the guest arrives).
In other cases, the standard of care owed is higher than the standard of reasonable care. For example, common carriers (those who transport people or property for money) typically have a duty to exercise the “highest degree of care” as opposed to a “reasonable degree of care.”
Here are some examples of different types of individuals and the duty of care they owe in most states:
|Party||Standard of reasonable care|
|Drivers||Duty to exercise reasonable care to avoid harming other people on the road|
|Store owners||Duty to exercise reasonable care in the maintenance of business premises, including keeping the premises free of dangerous conditions|
|Medical professionals||Duty to exercise the degree of skill and care expected of a reasonable health care provider in the same profession with the same training and experience|
|Product manufacturers||Duty to sell products that are free from defects|
|Bus drivers and other common carriers||Duty to exercise the highest degree of care to secure the safety of passengers|
Once the plaintiff establishes the standard of care that the defendant owed them, they must then prove that the defendant breached the standard of care.
Attorneys often frame the question as one of foreseeability. In other words:
Would an ordinary person in the defendant’s position have anticipated that their conduct could have caused the harm that ultimately resulted?
If so, the conduct was negligent.
In the case of professionals (especially those in specialized fields, such as doctors and structural engineers), experts are typically brought in to testify as to the industry norms and whether the professional’s conduct fell within those norms. In fact, many courts require expert testimony in these situations.
Before the court will hold the defendant liable, the plaintiff needs to establish that the defendant’s carelessness caused the plaintiff’s injury.
One way to think about causation is to ask the following question:
Would the harm have occurred if the defendant hadn't acted in the way they did?
If the answer is NO, then the action caused the harm.
Causation seems simple enough on the surface, but it can get complicated when experts disagree about whether A can cause B (such as in a product liability case in which the plaintiff alleges that a certain chemical caused their cancer).
The other tricky part about causation is that the plaintiff must tie the defendant’s negligent conduct (not just their conduct) to the harm.
Consider the following example:
In most states, punitive damages are only available in personal injury cases if the defendant acted with “gross negligence.”
So what is gross negligence and how does it differ from ordinary negligence?
Courts defined gross negligence differently, but all agree that gross negligence is something more egregious than ordinary negligence.
Examples of actions that would probably be considered grossly negligent in most states include:
Under the doctrine of “negligence per se”, the defendant’s law-breaking act serves to establish the first 2 elements of negligence (duty and breach) automatically. In other words, if a plaintiff can show that the defendant broke the law, the plaintiff doesn’t have to show that the defendant owed you a duty and breached that duty.
In most states, negligence per se only applies in situations where the defendant breaks a law that:
For example, drunk driving cases in which the driver was operating a vehicle above the legal limit often fall under the rule of negligence per se.
In some cases, the plaintiff is partially at fault for their accident.
Consider the following example:
When a plaintiff is partially responsible for their accident, the court must determine how the partial fault impacts their ability to recover damages. Each state has adopted 1 of 4 rules to make this determination: