In almost any kind of personal injury claim you can think of—from car wrecks to medical malpractice claims to slip and fall accidents—your chances of recovering a settlement or winning a lawsuit usually hinge on whether or not the other party was negligent. But what is negligence, and how do you prove it?
We'll explain the basics of negligence, along with the elements of a negligence claim. From there, we introduce you to a related concept called "negligence per se." As we'll see, if negligence per se applies in your case, you'll have an easier time proving that the other side is to blame for your injuries.
What Is the Definition of Negligence?
Negligence is the failure to be as careful as a reasonable person in the same situation would be. A person can be negligent by acting carelessly, or by carelessly failing to act. In other words, negligence can mean:
- doing something that a reasonable person in the same situation would not do, or
- failing to do something that a reasonable person in the same situation would do.
Because negligence is just careless behavior, it can happen in any aspect of everyday life: Driving a motor vehicle, business dealings, providing medical care or other professional services, maintaining (or failing to maintain) real estate, product manufacturing, and more. Quite often, when you hear lawyers and judges use legal-sounding terms like "medical malpractice" or "premises liability," what they're really talking about is negligence.
What Is a Negligence Claim Worth?
When you're injured because of someone else's negligence, the law probably lets you seek compensation (called "damages") from the at-fault party through an insurance claim or a personal injury lawsuit. The damages you can collect will depend on the facts of your case and the law in the state where your accident happened. In most states, they'll likely include some or all of these:
- your medical bills
- lost wages and benefits for time you're off of work
- other out-of-pocket costs associated with your injuries
- emotional distress
- pain and suffering
- loss of enjoyment of life, and
- disability and disfigurement.
How Do You Prove Someone Was Negligent?
To win a personal injury case, the plaintiff (the injured person who files a lawsuit) must prove that the defendant (the party being sued):
- owed a legal duty to the plaintiff to use reasonable care
- failed to meet ("breached") that duty by failing to act as a reasonable person in the same situation would have acted, and
- by breaching a legal duty, caused the plaintiff’s injuries.
Let’s take look a closer look at each of these elements.
Defendant Had a Legal Duty to the Plaintiff
The general rule in a negligence case is simple: Everyone has a duty to use reasonable care to prevent injury to others. For instance, when you drive your car, you're under a legal duty to drive as carefully as would a reasonable person in the same traffic, road, and weather conditions. You owe this duty to every driver, passenger, pedestrian, or other person who could be injured were you to drive unsafely.
The law recognizes some exceptions to this general rule. For example, if an injury isn't reasonably foreseeable, the law might not impose a general duty to act so as to avoid that injury (more on the concept of "foreseeability" a little later). And when imposing a duty would be fundamentally unfair, it's likely that no general duty exists. (Learn more about the duty of care in a personal injury case.)
So how do we measure the duty that's owed in a particular case? How do we know how careful a person must be? Here's the general rule: A person must act as carefully as a reasonable person would act in the same situation. 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. A person with a physical disability must act as would a reasonably careful person with the same physical disability. Professionals (like doctors) must use the degree of care that a reasonably careful professional in that field would use under similar circumstances.
Reasonable people don't have to be perfect. They just have to act sensibly and with appropriate caution given the circumstances.
Defendant Breached The Duty of Care
When a defendant doesn't meet the standard of care—when they do something a reasonably careful person wouldn't do, or fail to do something a reasonably careful person would do—they've failed to meet the standard of care. Stated a bit differently, they've breached the duty they owed to another person.
When you drive too fast on ice covered roads, you've breached a duty to drive with reasonable care. If you don't clean up a slippery substance from the floor of your store, you've breached a duty to maintain your property in a reasonably safe condition. A radiologist who fails to diagnose an obvious breast cancer on a mammogram breaches the duty to act as would a reasonably careful radiologist under similar circumstances.
When there's a duty and a breach of that duty, the law calls it negligence. To have a viable negligence claim, you must, of course, prove negligence. But proving negligence isn't sufficient to win your case. You must also prove that the defendant's negligence caused you to suffer some injury.
"Causation" and the Link Between the Defendant’s Negligence and the Plaintiff’s Injuries
To prove a negligence case, a plaintiff must show that the defendant's negligence caused them some injury. In legalese, this is called "causation." Lack of causation can sink a negligence case. Causation usually follows from proof that the defendant's negligence caused an accident. But don't take it for granted. Make sure you also prove that the defendant's negligence caused your injuries.
Here's a quick example. Say a driver carelessly veers toward the shoulder of the roadway, causing a bicyclist to swerve and suddenly fall. After the fall, the bicyclist complains of a broken arm and low back pain. Proving that the driver's negligence caused the bicyclist's broken arm will be simple. But suppose the bicyclist's prior medical records show complaints of lower back pain predating the roadside accident. The bicyclist will have difficulty proving that the driver's negligence caused their back problems.
The bicyclist can collect damages for the broken arm. The same probably isn't true for the lower back injury.
What Is Negligence Per Se?
Negligence per se is a modification of the normal negligence rules. It applies to conduct that is negligent in and of itself ("per se"), meaning the conduct doesn't need to be measured against any standard of care, or compared with what a reasonable person would have done. In other words, when negligence per se applies, the defendant's actions are presumed to be unreasonable and therefore negligent.
These are the elements of a negligence per se claim. The plaintiff must prove that:
- the defendant violated a statute or regulation
- the statute or regulation provides for a criminal penalty
- the defendant's wrongful act caused the type of harm the statute or regulation was intended to prevent, and
- the plaintiff was a member of the group of people the statute or regulation was meant to protect.
A couple of examples will help to illustrate how negligence per se works.
Example 1: Car Accident—Negligence Per Se
A driver runs a red light and strikes the plaintiff's vehicle broadside, causing extensive car accident injuries. In all states, running a red light violates the motor vehicle code and is punishable by a fine and possibly imprisonment. The motor vehicle code provisions are designed to protect the general public from property damage and personal injuries. The plaintiff is obviously a member of the general public.
Since all four elements of a negligence per se claim are satisfied, the plaintiff will be able to prove the other driver's negligence by proving that they ran a red light.
Example 2: Motorcycle Accident—No Negligence Per Se
A motorcyclist riding without a helmet—in violation of the state's mandatory helmet law—strikes a pedestrian while swerving to avoid a car. The motorcyclist has violated the mandatory helmet law and is subject to a fine, as well as to possible loss of their license. But the helmet law was meant to protect motorcyclists from head injuries, not to protect pedestrians from injuries caused by being hit by a motorcycle.
Because the last two elements aren't met, negligence per se doesn't apply in the pedestrian's lawsuit against the motorcyclist.
Do You Need a Personal Injury Lawyer?
We've explained the basics of negligence and negligence per se, but there's much more we haven't covered. Think you have a negligence claim? Your best bet will be to hire an experienced personal injury lawyer to handle your case. This is someone who knows what's needed to make out a negligence (or negligence per se) case in the state where you live, and who can help you get maximum value for your personal injury claim.
When you're ready to move forward, here's how to find a personal injury lawyer near you.