Negligence and how it is determined in a personal injury claim

Truck on highway; Elements of Personal Injury Case: Negligence

Negligence is a specific area of tort law that must meet 4 requirements in a personal injury case

One of the most common reasons for filing a personal injury claim is the belief that another party’s negligence led to you getting hurt.

This is obviously different than situations where deliberate actions led to harm. Consequently, negligence can seem like a bit of a nebulous concept to the layperson. Lots of people overlook lots of problems in daily life and no harm comes of it.

In the eyes of the law, what really constitutes behavior that’s negligent enough to justify compensation for injuries?

What is negligence?

In the legal sense, negligence is the failure to take reasonable care in situations where one would typically expect one’s property to come into contact with other properties or persons.

For example, trucking companies often send their fleet vehicles out into the world. There’s a reasonable expectation by all members of the public who drive past those vehicles that the fleet operator is maintaining them. If the brakes fail after a mechanic forgets to inspect them, anyone harmed in the resulting accident might be able to pursue a claim arising from negligence.

What is NOT negligence?

It’s also helpful to contemplate what is not considered negligent behavior. The tort of negligence is a narrow concept within the broader notion of liability. Parties are often found liable for many things that are hardly negligent. For example, if a car company deliberately shirked safety standards in its design process, that would not be seen as negligence.

The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.  Tweet this

How can we determine if someone was negligent?

The distinction between negligence and other forms of liability rests heavily on very specific facts in each case.

Look back at our trucking fleet example. If the trucking company were deliberately attempting to cut costs by trying to get more mileage out of each set of brake pads, that choice would not be normally seen as negligence. If, however, a breakdown of diligence occurred due to laziness, exhaustion or poor training, that may be seen as negligent.

Enjuris tip: The person or party at fault can be liable for the injury they caused you without being negligent.

Proof of negligence therefore hinges on highly specific types of evidence.

In the trucking operation example, an attorney representing an injured client would want to see the vehicle maintenance logs. The case would then hinge on whether the mechanics were doing their job regularly and well.

If good maintenance habits were being employed, then the law firm handling the case might steer away from a claim of negligence and start looking at issues like manufacturer’s defects.

Conversely, if maintenance schedules weren’t being handled diligently, then the law firm representing the injured client would start exploring questions of negligence.

Duty of Care

A big element in proving fault in nearly all negligence cases is the duty of care.

This is the idea that when someone might foreseeably be injured, there is a duty for responsible property owners to take preventative measures.

If a grocery store has an entryway where melting snow is a common hazard during the colder months, the operator of the store has a duty to take care of the entryway in order to ensure that members of the public aren’t at heightened risk of injury. This is what we think of as the classic slip-and-fall injury claim.

Enjuris tip: Property and business owners are meant to provide for a realistic level of care. But hey, you and I are also expected to take reasonable precautions.

It’s worth noting that this duty is counterbalanced by an expectation that the public will also take reasonable precautions.

If an individual in the slip-and-fall example were to choose to wear flip flops on this hypothetical bad weather day, that would normally be factored in when determining the assignment of the percentage of responsibility for the injury.


It is not enough that a party can provide proof of negligence. If negligence occurred and no one was harmed, then there is no basis for a claim.

The plaintiff must also prove some type of economic loss, although there are circumstances where other types of damages may also be awarded.

If an individual were pursuing a claim for mental anguish arising from negligence, that person would be required to prove that they were emotionally harmed and that they suffered a quantifiable economic, physical or emotional loss before they could seek compensation.

Recap: The 4 elements of negligence

  • First, there must be an existing duty of care.
  • Second, that duty of care must have been provably breached.
  • Third, the breach of duty of care has to be the proximate cause of an injury.
  • Fourth, the resulting injury gave rise to a demonstrable monetary loss.

All four of those elements must be in play before a claim of negligence can be pursued.

It’s important to note that the duty of care is not an abstract or nebulous concept. The law sees in most instances very clear duties.

Business owners, for example, frequently dislike local regulations that compel them to clear sidewalks that are on or adjacent to their properties. Their objections don’t matter because legally the property owner has a duty to care for any nearby areas where the public might roam.

4 Questions to Determine If Your Personal Injury Case Involves Negligence:

  • Did a duty of care exist?
  • Can it be proven that the duty of care was breached?
  • Did that breach cause an injury?
  • Did that injury lead to monetary loss?

All 4 elements must be in play before a claim of negligence can be pursued.

Liability can also be assigned by contract in many scenarios.

For example, a property owner might rent a business space to someone else. In the process, the renter might be assigned responsibility for keeping a sidewalk clear. It’s critical for the property owner, however, to be able to produce a paper trail clearly demonstrating that liability was knowingly assigned to the renter.

Negligence is a very specific tort – does your personal injury case meet the 4 criteria?

Negligence can seem like an ill-defined concept. In the law’s view, though, negligence is a very specific tort arising from the duty of care and its breach. Once a duty has been established and a breach has been demonstrated, the only remaining hurdles are proving real harm and quantifying it.

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