The Elements of Negligence

Earlier, we discussed what negligence is. At it’s most basic, negligence is the failure of a person to exercise reasonable care. But, like all things lawyers touch, this is a complicated concept. There are different ways to think about negligence, but a case generally boils down to 4 elements: duty, breach, causation, and damages. There are different formulations of this breakdown, but I like the 4-part explanation best.


All negligence claims are based on a duty. Most often, that is the general duty we all have to exercise reasonable care when interacting with the world. Most often, this forms the basis of a negligence claim. But some people, when performing certain tasks, are held to a higher standard of care. A doctor, for example, can be held legally negligent for failing to do something that an ordinary person would never be expected to do. This is a large part of why all injury and negligence cases are so different. Analyzing what happened depends on who did it, and in what capacity they were acting.


Once we have established what duty was owed, we need to determine whether there was a breach of that duty. Although it can be a significant factor, the fact that an injury occurred does not necessarily mean that there was a breach of the duty. As the standard of care rises and the task being performed becomes more complex, it can be harder and harder to tell whether a breach occurred. In the case of the doctor mentioned above, it may require expert testimony by another doctor to determine whether the first doctor took the precautions that were reasonable. In more ordinary circumstances, like a driver who failed to secure his trailer, common sense intuitions about safety can go a long way – but fall short in unexpected ways. The bottom line is that a trained negligence lawyer will probably be necessary to determine whether there was a breach or not. And sometimes, the area is just so gray that a judge or a jury is required to make the final determination.


For a negligence claim, it is not enough that a duty was breached. The injured party must also show that the breach was the cause of the damages that he sustained. This can be a very complicated step. A law school trick for determining causation is the but-for test. Ask yourself, “but for the defendant’s actions, would the injury have taken place.” If, in a world without the defendant’s action, the injury still would have occurred, we probably don’t have causation. On the other hand, if we take away the defendant’s action and the injury disappears, that’s a good sign that causation exists. It’s important to remember that there is some limit on causation. People are only responsible for the reasonably foreseeable results of their actions. If the damage was a result of a long and windy path of improbable and unlikely reactions, it may be that legal causation will limit the defendant’s responsibility and determine that causation doesn’t exist. Again, this is highly fact specific and worth consulting an expert about for your situation.


Finally, a negligence case must have damages. It’s not enough that a duty was breached and that breach caused something to happen to a victim. The breach must cause damage to the victim. Damages are about placing a monetary value on the harm to a victim. They are imperfect and occasionally insulting, but the best our legal system has to offer. There are different types of damages. Special damages are quantifiable dollar amounts that the victim lost because of the harm. They include compensatory damages. They might include lost wages, medical bills, or damage to your car as examples. General damages are reflective of harm that doesn’t have a specific dollar amount. Pain and suffering a commonly used example. Finally, we have punitive damages which are intended to punish the negligent party for his actions. They don’t exist to compensate and aren’t tied to the harm suffered but instead to how badly the defendant acted.


Negligence is a legal concept that anyone who has been injured is likely to hear a lot about. It is central to injury law across the country. Broadly speaking, negligence is a failure to exercise reasonable care. The law likes to talk about reasonableness and pretend that it is a concept that can be described concretely. You can think of reasonable care as the care that a reasonably prudent person would exercise in the same situation.

The basic idea behind negligence is that everyone should exercise reasonable care when they act, and doing that means taking into account the potential harm their actions could foreseeably cause others. Those who fail to take reasonable care, are liable for the reasonably foreseeable results of their actions. So, for example, if you fail to tie down some furniture in the back of your pick-up truck which then falls out while you’re driving down the highway and hits the driver behind you, you were negligent and responsible for the foreseeable results of your actions. And since it doesn’t take a Stephen King to imagine that driving with loose furniture could be a danger to those behind you, the damages you caused were probably foreseeable.

But often, it’s not so clear whether or not someone was negligent. In that situation, it may take a Court to determine whether a party was negligent and liable for the damage they caused. Injury lawsuits can be fought over liability, damages, or both. If the parties are arguing over whether someone was negligent, they are arguing over liability.

The thing to remember is that when you go out in the world, you are expected to behave in a reasonably prudent manner. Be careful. And watch out for everyone else too. The law may presume that people will act with reasonable care, but you’ll probably be safer if you assume the opposite.

Negligence per se

Law holds us liable for both our intentional and negligent acts. Because intentional acts tend to be very obvious, most legal cases are more concerned with negligence. I’ve discussed it before on here, but negligence happens when a person fails to exercise “reasonable care.” But, deciding this happens after the fact and usually requires a jury. One exception to that is negligence per se.

Negligence per se translates to negligence in itself. Basically, some acts are so obviously problematic that it doesn’t matter whether or not they’re done with reasonable care. If something is negligence per se, the person who commits that act is liable for the reasonably foreseeable consequences of that action. No matter how careful they were. Basically, this refers to the violation of a statute. Specifically, this refers to the violation of a statute intended to protect the plaintiff that injures the plaintiff.

A plaintiff must establish five elements to bring a negligence per se claim: (1) that the defendant violated a particular statute; (2) that the statute was enacted to protect a specific class of persons; (3) that the plaintiff is a member of the class; (4) that the plaintiff’s injury is the kind of injury that the statute was enacted to prevent; and (5) that the statute was intended to regulated members of the defendant’s class.

If the plaintiff proves these elements, a defendant is negligent as a matter of law. But that’s just the first step. The plaintiff must still succeed in proving causation and damages to establish liability. If a plaintiff fails to do that, his claim fails as a matter of law. The defendant’s actions must have caused the alleged damages. Similarly, a claim fails as a matter of law if the plaintiff fails to establish the material elements of the claim, including damages.

What does all that mean? Basically that negligence law continues to apply. The four common elements of damages are duty, breach, causation, damages. Instead of a traditional duty analysis, we have the five factor test discussed above. But that’s only the first step – and the remaining three steps continue to apply. Because it short-circuits the duty requirement, negligence per se can be a powerful claim. But, it’s important to remember that it carries its own set of requirements and shouldn’t be reduced to just “breaking a law.”