Personal Injury

What is Negligence?

By Carole Bosch, Attorney
The legal concept of negligence forms the basis for the at-fault party's liability in most personal injury cases, so it helps to understand how negligence works, and how it can be established.

In almost any kind of personal injury claim you can think of -- from car accidents to slip and fall incidents, and everything in between -- the injured person's chances of recovering a settlement or court judgment usually hinge on whether or not the other party was negligent. But, what does that mean?

The Basics of Negligence

Negligence is the failure to exercise the type and level of care that a reasonable person in the same situation would exhibit. A person may be negligent by:

  • doing something that a reasonable person in the same situation would not do, or
  • failing to do something that a reasonable person would do.

Negligence can occur in almost all aspects of everyday life: car accidents, business dealings, medical care, property maintenance, product manufacturing, and more. Anyone injured as result of negligence may seek compensation through a personal injury lawsuit in which damages are sought from the at-fault party. (Even if you're only making an insurance claim with the at-fault party's carrier, the success of the claim will almost always depend on whether the insured was negligent in connection with the underlying incident. Learn more about Personal Injury Lawsuits Versus Personal Injury Isurance Claims.)

To prevail in a personal injury lawsuit, the injured person (the plaintiff) must prove that:

  • the defendant had a legal duty to the plaintiff to use reasonable care
  • the defendant acted or failed to act as a reasonable person in the same situation would, and
  • the defendant’s action or failure to act caused the plaintiff’s injuries.

Let’s take look a detailed look at each of these elements.

The Defendant Had a Legal Duty to the Plaintiff

The general rule in negligence law is that everyone has a duty to use reasonable care to prevent injury to others. But, the courts have created exceptions based on two main factors: the foreseeability of the injury and the fundamental fairness of imposing a duty. Learn more about The Duty of Care in a Personal Injury Case.

The Defendant Acted or Failed to Act as a Reasonable Person in the Same Situation Would

The degree of care required in a given situation is commonly referred to as “the standard of care.” An individual is held to the standard of a reasonable person in the same situation. But the standard varies with the characteristics and qualifications of the individual. For instance, a child’s actions are measured against those of a reasonable child of a similar age, intelligence, knowledge, and experience in the same situation. Similarly, a person with a physical disability must act as a reasonably careful person with the same physical disability would. Also a professional (such as a physician) is required to use the amount of skill, knowledge, and care that a reasonably careful professional in good standing in that field would. (More: Who is the 'Reasonable Person' in a Personal Injury Case?)

Sometimes, the standard of care is defined by a statute. Speed laws, for instance, are often used to define the standard of care for a driver in a car accident case. A person driving 65 miles per hour in a school zone will be presumed negligent if he or she causes an accident.

The Defendant’s Action or Failure to Act Caused the Plaintiff’s Injuries

To prevail in a negligence case, a plaintiff must also show that the negligence of the defendant caused the injuries complained of. To illustrate, a driver runs a stop sign and causes a bicyclist to veer suddenly and break her arm in a fall. The bicyclist can pretty easily show that the driver’s negligence caused her injury. But if, after the fall, the bicyclist complains of lower back pain and her medical record show a history of back pain dating prior to the accident, she may have a difficult time proving that the negligence of the driver caused her back problems.

Courts also look to whether the defendant could reasonably foresee the injuries caused in the accident. In the classic case of Palsgraf v. Long Island Railroad, Mrs. Palsgraf was standing on a train platform. At the other end of the platform, a man attempted to board a moving train. A railroad employee on the train and another on the platform helped him on board but, in the process, the man dropped a firework. The firework exploded when it hit the ground, frightening another man on the platform who tipped over a heavy set of scales. The scales landed on Mrs. Palsgraf. The court held the railroad could not be found negligent for Mrs. Palsgraf’s injuries because the two railroad employees could not have foreseen when they helped the passenger on the train that she could be harmed in such a manner. Learn more about Foreseeability in a Personal Injury Case.

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