What is Negligence?

If someone injures you and you want to sue them, it is important that your lawyer first establish whether the person who hurt you was negligent. Not all injures are appropriate for lawsuits. And not all injuries are due to someone else’s negligence. If the other person does not meet the elements of negligence, any lawsuit against her will be unsuccessful.

Negligence in personal injury lawsuits
In order to be successful in a personal injury lawsuit, you must prove all elements of negligence.

Negligence Explained

If you are injured and want to sue someone, you are required to prove that the other party was negligent. Negligence has five elements. They are:

  • Duty
  • Breach
  • Proximate Cause (Legal Cause)
  • Cause in Fact (Factual Cause)
  • Damages

All elements must be proved to win a lawsuit.


As we go through our lives, we have a duty to behave in a certain way. That duty will vary based on what we are doing. For example:

  • When you are driving a car on the road, you are expected to drive that car properly. You have a duty to other people on the road. Car crashes are where most people end up in lawsuits (either as plaintiff or defendant) and so the most likely place you will encounter the concept of negligence.
  • The other most likely place you will encounter the concept of negligence involves getting hurt in a business. Stores have a duty to people who come into the store. They are required to keep the store safe. However, stores are not responsible for injuries nearly as often as people think they are.
  • Dog owners have a duty to make sure they keep their dogs under control so they don’t hurt people or other animals.
  • Lawyers and doctors have duties to the people who come to them for help.
  • Your mechanic has a duty to you that includes making sure he repairs your car properly.

Not Everyone has a Duty to You

Keep in mind, not everyone has a duty to you. Sometimes, it is easy to prove that someone had a duty. Sometimes it is not. Let’s look at the urban legend of the burglar who breaks into your home, falls, hurts himself and successfully sues you. You don’t have a duty to keep a burglar safe in your home. (However, you cannot set up traps in your home, either.) Now, I am not saying there has never been a burglar with enough chutzpah to sue. I am saying that no burglar would be successful, in the end, if he broke into your home, slipped and fell, and hurt himself.

Similarly, the opposing counsel in a lawsuit does not have the kind of duty to you that would make her eligible to sue for malpractice. She will have obligations related to ethics and perhaps other laws, but she cannot be liable for negligence to you. This is because she is not your lawyer.


The next element of negligence is breach. A breach means that you violated your duty.

  • You read-end another car because you are texting and don’t realize the car stopped.
  • You are responsible for maintaining your sidewalk, you know there is a problem with it, you don’t fix it.
  • Your dog escapes your control.
  • A doctor violates what is called the medical standard of care, in the services she provides.
  • A lawyer violates the legal standard of care in the services he provides.
  • A store knows that there is a slippery area due to a spill and fails to clean it up.

Each of these things are a breach. In most cases, breach is analyzed under what we call the reasonable person standard. The reasonable person standard is an objective standard applied to the specific situation. The jury needs to look at the situation and determine whether the reasonable person, in the given circumstances, would have done what you did.

Professionals will have specialized standards of care for their conduct when they are performing work that falls within their profession. A doctor is judged by the reasonable doctor standard. A lawyer is judged by the reasonable lawyer standard. What would a reasonable doctor do? What would a reasonable lawyer do? This specialized standard only applies when the situation relates to that profession. For example, as a lawyer, if I represent you, I must follow the legal standard of care. But as a driver, I have the same standard of care as every other driver. My legal standard of care does not follow me to other areas of my life.

Proximate Cause (Legal Cause)

The breach must be the proximate cause of the injury. In other words, the breach cannot be so remote to the injury that it is unforeseeable that the behavior in question could have caused it. Proximate cause is a pretty confusing aspect of negligence, so it can be a bit rough to wrap your mind around it.

The case that law students study for proximate cause is called Palsgraf v. Long Island RailroadAs with most cases involving an argument about proximate cause, it has quite a set of facts to it. It actually sounds a little bit like what you might see in a Looney Tunes cartoon (with respect to poor Mrs. Palsgraf.)

Mrs. Palsgraf was waiting for a train. Two men were running to catch a different train. One boarded just fine, but the other had some trouble. Employees for the train station helped the man get on the train. As it happened, he was carrying a package of fireworks. These were the days before we had many laws surrounding the safety of fireworks, and so, when the man dropped his fireworks due to the pulling and pushing of the employees, they exploded. The explosion scared the crowed waiting for other trains, causing them to stampede. One of the stampeding patrons hit a set of heavy scales. The scales landed on Mrs. Palsgraf and injured her.

Told you it was like a cartoon.

Mrs. Palsgraf’s attorney argued that Long Island Railroad was negligent because the employees jostled the man, causing him to drop the fireworks, causing the stampede, causing the scales to fall, causing her injuries. The court held that there was no way that the employees could ever have foreseen that series of events, and therefore, there was no proximate cause to connect Mrs. Palsgraf’s injuries to their actions. Perhaps if the man had fallen on Mrs. Palsgraf she would have had a case. But the scale falling was simply not something anyone could have expected to occur.

Think of proximate cause as reasonable foreseeability. That is, could the person conducting the action ever reasonably have foreseen that his actions would cause the harm the injured person suffered.

We use the word reasonable a lot in negligence.

Cause in Fact

Cause in fact is the actual cause of the injury. The actual cause of poor Mrs. Palsgraf’s injury was the scale falling on her. Had the employees been moving the scale and dropped it on Mrs. Palsgraf, their conduct would have been both the proximate and actual cause of her injuries. Alas, that was not the case and so she was unable to successfully sue the train company.

Similarly, if you are traveling too close to someone and you rear-end their car, causing them to suffer from whiplash, your conduct was the direct cause of their harm.

Remember, cause in fact has to be balanced by legal cause, to avoid the remote, unforseeability problem discussed previously.


Damages should be pretty straight forward. You must actually be injured. If you are not injured, even if all of the other elements of negligence are met, there is nothing to sue over. While you may be upset because someone rear-ended your car, if you did not suffer any injury and their insurance paid for the damage to your car, then you would have no basis for a lawsuit.

Similarly, if you fall in a store because of a defect in the carpet, if all you suffered is embarrassment, there is no damage and no basis for a lawsuit.

This, of course is a good thing. It is better to have nothing to sue over when you encounter someone’s negligence. No one wants to be hurt.

Emotional Only?

In a personal injury case, it is rare for emotional damages to be enough to sustain a lawsuit. Emotional harm is part of most personal injury cases, but that harm comes from the physical damage that you suffered. Emotional suffering must be connected to the physical damage and how it has impacted your life. There are however, exceptions for two causes of action: negligent infliction of emotional distress and intentional infliction of emotional distress. Both of these claims have different rules around the country.

Negligent Infliction of Emotional Distress

It used to be that emotional damages alone could never be the basis for a negligent infliction of emotional distress lawsuit. But now, some jurisdictions do allow recovery for purely emotional harm. The two most common sources for recovery without physical injury for NIED are:

  • Zone of danger
  • Saw a loved one hurt

Zone of danger would come up when someone almost hit you with their car. Or perhaps, unfortunately, these days, we could add if you are at a scene where people get shot.

Saw a loved one harmed would come up when you see your own child or spouse get hit by a car. You may not have been in the zone of danger, you could be across the street. But some courts recognize such a thing to be so traumatic that you might suffer extreme emotional harm from it.

Intentional Infliction of Emotional Distress

People frequently ask about suing for intentional infliction of emotional distress. The reality is that in order to be successful in a suit for IIED, you have to show really bad behavior on the part of the defendant. Simply insulting you isn’t going to do it. The conduct must be so bad that it shocks the conscience. And of course, it must be intentional.


As you have learned, there are five elements required to prove negligence. If you cannot prove all five of them, you will not have a successful lawsuit. The standard for proving your case will vary based upon who you are suing and why you are suing them. Proving negligence in a car accident, for example, is much easier than proving a case of medical malpractice (medical negligence) against a doctor.

In every case, if you believe you have suffered an injury that could be the basis for a personal injury lawsuit, your best option is to speak with a lawyer. I do not handle personal injury cases, but if you need help finding a lawyer, and I know someone where you are, I will be happy to provide a recommendation. Just drop me a note. Be sure you tell me where you are (city and state) and what caused your injury. Don’t include too much information though. Just whether it was a car accident, lawyer, doctor, etc. I cannot recommend lawyers outside of the US.




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