What Is Negligence? Definition & Examples

One key thing to remember about negligence is that its ordinary, everyday meaning is different from its legal meaning. The ordinary meaning of negligence, per Google’s English dictionary, is the “failure to take proper care in doing something.”

Contrast this with the legal definition of negligence: the failure to exercise the level of care toward another person that a reasonable or prudent person would exercise under similar circumstances. This “failure to exercise reasonable care” encompasses both a person’s actions and the failure to act.

As you can see, the legal definition of negligence has a much narrower application than its everyday meaning. This is because the legal meaning relies on the concept of “the reasonable person.”

The Reasonable Person Test

The reasonable person test is an objective standard that the law applies to determine if an individual has acted the way a reasonable person would act. Because the test is objective, it applies to everyone, regardless of their individual characteristics. This means, for example, the test is applied regardless of differences in a person’s intelligence or life experiences.

The following is a general outline of the various types of negligence, but it’s important to keep in mind that individual states differ in how they define and quantify the extent of the liability of each type of negligence.

Gross Negligence

When a person acts with gross negligence, they’re acting with a reckless disregard for the harmful consequences of their actions. Gross negligence is the most serious type of negligence, and a finding of gross negligence can result in a higher amount of damages.

While this recklessness falls short of an actual intent to commit harm, it also goes beyond ordinary negligence. For example, a driver who has an accident while speeding on a highway might be found liable for ordinary negligence, but a driver who hits a child while speeding through a school zone is acting with a reckless disregard that could form the basis for a finding of gross negligence.

Contributory Negligence

Contributory negligence refers to the plaintiff’s own negligent actions which contributed to the injuries they sustained. It’s an all-or-nothing approach to liability that can have harsh consequences for personal injury plaintiffs.

In jurisdictions where contributory negligence is allowed as a defense in personal injury lawsuits, a plaintiff could be denied compensation if the defendant can show that the plaintiff was even 1% responsible for the accident causing their injuries.

For example, a bicyclist sues for damages for injuries suffered when they were hit by a driver making a right-hand turn. The driver, who was negligent in not slowing down while making the turn, might, however, be able to support a defense of contributory negligence by showing that the bicyclist was using their cell phone while on their bike.

Most states have replaced the doctrine of contributory negligence with comparative negligence, which we discuss next. However, pure contributory negligence still applies in Alabama, Maryland, North Carolina and Virginia, as well as in Washington, D.C.

Comparative Negligence

To avoid the potential for harsh, unjust results in negligence cases that can happen under the pure contributory negligence approach, the majority of states have adopted the doctrine of comparative negligence.

Under this doctrine, a plaintiff who’s found to be partially at fault is still entitled to compensation, but the amount is adjusted by the percentage of their own fault.

There are two approaches to comparative negligence, and the type that might apply to your personal injury case will depend on your state’s laws.

1. Pure comparative negligence. With the pure comparative negligence approach, compensation is awarded based on the allocation of fault. For example, if a plaintiff is awarded $40,000 in damages but they were found to be 75% at fault, they’d be entitled to 25% of the compensation awarded, or $10,000.
2. Modified comparative negligence. Also known as combined or mixed comparative and contributory negligence, the modified comparative negligence approach bars a plaintiff from receiving compensation for their injuries if their percentage of fault is above the maximum amount set by state law.
   Depending on the state, this maximum may be either 50% or 51%. For example, in a state that sets a 50% bar, plaintiffs won’t be able to recover if it’s found that they shared equal responsibility for the accident. Plaintiffs in states with a 51% bar can recover if they are found to be equally responsible, but won’t be entitled to compensation if they were more at fault than the defendant.

Vicarious Negligence

Vicarious negligence occurs when an entity or an individual is found liable for the negligence of someone else. Also known as vicarious liability, vicarious negligence is commonly seen in the employment context, where an employer might be found vicariously liable for an employee’s negligence while on the job.

For example, if a grocery store employee fails to clean up a spill in the juice aisle in a timely manner and a customer slips on the spill and injures themselves, the grocery store, as the employer, might be found vicariously liable for its employee’s negligence.

There are four elements of negligence which must be established for a claim of negligence to succeed:

1. Duty of care
2. Breach of duty of care
3. Causation
4. Harm and damages

It’s not enough to prove just some of these elements. To succeed in recovering compensation for their injuries, plaintiffs must prove all the elements of negligence.

For example, let’s say the plaintiff was injured when they slipped on the stairs in the defendant’s house. The plaintiff is able to show that the defendant caused the accident by not building the stairs properly. They also show they suffered a broken leg as a result.

But if the plaintiff is unable to establish that the defendant owed them a duty of care (perhaps because the plaintiff broke into the defendant’s house), they won’t be able to succeed in their claim. If the plaintiff was an invited guest, however, the defendant would have owed a duty of care and negligence could be proven.

Duty of Care

The first step in establishing negligence is to show that the defendant owed a duty of care to the plaintiff. This might sound like a difficult thing to prove, since we don’t normally walk around talking about the duty of care we owe to others. But it’s probably the easiest element of negligence to establish.

Under the law, a duty of care arises when a relationship between two individuals requires one to act with reasonable care towards the other. So, for example, every driver of a vehicle owes a duty of care—to operate their vehicles safely—to other drivers and pedestrians. Restaurateurs owe a duty of care to diners. Shop owners owe a duty of care to customers. Manufacturers owe a duty of care to people buying their products.

Breach of Duty of Care

Once the plaintiff shows that the defendant owed them a duty of care, they then have to establish that the defendant breached that duty. This is where the reasonable person standard discussed above becomes a factor: The plaintiff needs to show that the defendant failed to act the way a reasonably prudent person would act in the same or similar situation.

For example, if a driver who’s texting while driving on a public road loses control and hits a pedestrian, they have breached their duty of care. But if that same driver was texting while driving on his own private roadway, and the plaintiff was a trespasser, then the court or jury might find that there was no breach of duty of care.

Causation

Under this element of negligence, plaintiffs must prove two types of causation:

1. Cause in fact of the injury. A plaintiff establishes cause in fact by showing that the defendant was the actual cause of the plaintiff’s injuries. One common way to show this is to use the “but for” test: But for the defendant’s actions, the plaintiff wouldn’t have been injured.
   For example, if the plaintiff shows that the defendant’s texting while driving caused them to lose control of the car, which then hit the plaintiff, they will have established cause in fact of injury. But for the texting, they wouldn’t have hit the plaintiff.
2. Proximate cause. Proximate cause refers to the foreseeability of the damage or injuries that resulted from the defendant’s actions. For example, the defendant above should have foreseen that texting while driving could cause them to lose control of their vehicle and consequently, hit the plaintiff.
   However, let’s say that, instead of hitting the plaintiff, the defendant’s car hit the plaintiff’s parked car. If the plaintiff then has an accident the next day while they’re taking their car in for repairs, it couldn’t be said that the defendant should have foreseen this second accident occurring as a result of their actions.
   

Harm and Damages

Finally, it must be established that the plaintiff suffered harm as a result of the defendant’s actions. This harm must then be converted into a dollar amount, which is typically done by presenting monetary evidence of the harm, such as the medical costs incurred by the plaintiff and any lost wages.

For example, a plaintiff who suffers a slip and fall at a local grocery store might be able to establish the first three elements of negligence. But if they sustained only a bruise that went away without medical treatment and didn’t interfere with their work, they won’t be able to show the harm necessary to succeed in their negligence claim. But if they broke a leg and couldn’t work for three months, they suffered compensable harm.

To prove negligence in a personal injury claim, your attorney must produce the evidence necessary to establish each of the elements of negligence outlined above.

• Direct evidence. Direct evidence is evidence that establishes the facts being proven without the need for the court or jury to make any inferences. Direct evidence includes physical evidence, such as photos of damage done to a vehicle, as well witness testimony.
• Circumstantial evidence. Circumstantial evidence is evidence that requires the court or jury to make an inference as to the facts that the evidence is being used to establish. Circumstantial evidence could include testimony that someone saw the defendant driving away from a hit-and-run scene. They didn’t see them do it, but they saw them leaving the scene. The inference is that they were involved.
  The Latin phrase res ipsa loquitur (meaning “the thing speaks for itself”) is a rule of evidence (the requirements of which vary by state) that allows plaintiffs to use circumstantial evidence to prove negligence. This presumption is rebuttable, meaning the defendant can still prove that they weren’t negligent.

Proving a negligence claim can be difficult. Your attorney must prove each of the elements of negligence. This also requires showing what a reasonable person would do in the circumstances and establishing that the defendant did not behave the way a reasonable person would. And if both parties are at fault, the proportion of fault must also be established.

While negligence is the most common basis for personal injury cases, there are other theories of liability that can be applied. These include strict liability and intentional wrongs.

Strict Liability

Under strict liability, a plaintiff only has to show that the defendant’s product or activity posed a danger that was unreasonable and that they suffered injuries as a result.

For example, if a plaintiff suffers injuries due to electric shock from a defective light fixture, the manufacturer of the light fixture (and possibly others in the chain of distribution of the product) might be found strictly liable for those injuries.

Additionally, owning certain animals and participating in abnormally dangerous activities creates strict liability.

Intentional Wrongs

Also known as an intentional tort, an intentional wrong occurs when a plaintiff is injured as a result of the defendant’s intentional action against them. For example, a victim of a knife assault could bring a personal injury lawsuit based on intentional wrong against the person who assaulted them. This lawsuit would be separate from the defendant’s trial on any criminal charges that might arise from the same incident.

An important distinguishing characteristic is the plaintiff’s burden of proof, which is usually by “a preponderance of the evidence” in a civil lawsuit compared to “beyond a reasonable doubt” in a criminal case, a much higher burden.

Negligence can be a complex area of law. It’s important to consult with an attorney if you’re thinking about bringing a negligence claim against someone. An experienced personal injury lawyer can help guide you through the litigation process and advise you on the potential outcome of your claim.