What Is Negligence?

If you suffer harm because of another’s careless action, or lack of action, then that person or company can be held liable (legally responsible) for the harm done to you. The legal term for that carelessness is “negligence.” (1)

Negligence cases are civil cases, which are known as “tort actions.” The term “tort” simply means a legal wrong. Negligence law allows you to sue someone for the harm they caused you either by accident or recklessness. (2) Negligence occurs when someone’s actions or failure to act falls below a reasonable standard of care. (3)

This reasonable standard of care is based upon the notion of “what an ‘ordinary’ or ‘reasonable person’ would have done in similar circumstances,” says the American Bar Association. (4)

Who Can Be Negligent?

Negligence can come into play across many industries, professions, and circumstances. It can happen any time someone acts inattentively or recklessly.

There are any number of situations where negligence may play a role. Here are a few examples:

  • Car accidents make up thousands of personal-injury lawsuits each year.
  • Medical malpractice – when doctors and hospitals do something wrong – can lead to death or permanent damage.
  • Workplace accidents, which happen at your workplace or another business, impact millions of people across the U.S.
  • Slip or trip and fall accidents often happen, especially when there is a defective, hazardous sidewalk or other premise defect.
  • Children suffer harm when left with caregivers or in facilities that are incompetent.
  • Seniors who require services provided by nursing homes, adult day care programs, and in-home nursing care can suffer harm from inadequate care.
  • Bullying or cyberbullying can cause long-term harm to children, both physically and emotionally, or even lead to suicide.
  • Shootings, whether at school or at other public venues, result in large numbers of victims who sustain injuries that range from minor to fatal.

If you or a loved one has experienced injury resulting from negligence, contact us for a free consultation.

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Negligent acts usually fall into one of two classifications: ordinary or gross.

Ordinary negligence is when “a person does not take reasonable precautions, resulting in injury to another.” For instance, when a driver fails to stop at a stop sign, that is ordinary negligence. (5)

On the other hand, gross negligence “involves more than simple carelessness … It means an extreme disregard or indifference for the safety of others.” (6) An example of gross negligence might be when a driver fails to stop for a school bus while children are getting on or off, and instead tries to pull around it.

How to Establish Negligence or Lack of Reasonable Care

Negligence comprises five elements. These elements are: (7)

  • Duty.
  • Breach.
  • Cause.
  • Proximate cause.
  • Harm.

To prove a case of negligence, your lawsuit must establish: (8)

  • A legal duty existed that the defendant (person being sued) owed to the plaintiff (person who filed the lawsuit).
  • The defendant breached that duty.
  • The plaintiff suffered injury (damages).
  • The defendant’s breach caused the plaintiff’s injury.

What Is Duty?

A duty is the responsibility or obligation members of society have to each other. It is a failure of duty to engage in harmful behavior. (9)

Determining a Duty to Act

Sometimes a duty to act is mandated by law. Many states’ laws require you to stop and help someone who has been hurt, say in an accident. You could also be required by law to help rescue someone from a flood or fire, or to try to prevent harm to others by warning people of an impending danger.

Often these laws directly apply to trained professionals, such as first responders and medical personnel.

However, these laws can be aimed at any group of citizens who, by acting, may prevent harm to themselves and others. Think of city laws which mandate that homeowners must shovel the sidewalks in front of their homes within 24 hours after a snowfall.

When the duty to act is not mandated by law, a court may determine that a duty to act exists based upon what a reasonable person would have done in similar circumstances. This is sometimes called the “Reasonable Standard of Care” rule.

Additionally, the court may determine a duty to act exists based upon your relationship with the person you are suing. Some relationships are categorized as voluntary, while others are considered professional.

A voluntary relationship might exist between neighbors or between homeowners and guests visiting their home.

Professional relationships might include a doctor and patient, or a lawyer and client. (10)

If a duty to act exists, the next consideration is whether or not that duty has been breached.

Breach of Duty

A breach of duty refers to the conduct (actions) or omission (lack of actions) of the person or company that harms someone. And, duty may depend upon the relationship between you and who you are suing.

Additionally, modern law requires a person to act with reasonable regard for the safety of others and themselves. When a person acts carelessly, without consideration for their own safety or that of others, they have committed a breach of duty. (11)

In determining breach of duty, courts seek answers to these questions:(12)

  • Did the defendant engage in creating risk resulting in harm to the plaintiff?
  • Did the defendant volunteer to protect the plaintiff?
  • Did the defendant know, or should have known, the conduct would harm the plaintiff?
  • Did a duty exist that depended upon the relationship (business/voluntary) between the two parties?

Using the Hand Formula: Many courts also use the Hand Formula to determine breach of duty. This formula is B<PL. In the formula, B = burden of taking precautions, P = probability of loss, and L = gravity of loss (personal). (13)

Injury and Causation

Once duty and breach have been established, the court examines the injury and whether the breach of duty caused the injury suffered.

Injury refers to the suffering of the person injured, either from harm to body or property, which must be demonstrated to the court. Determining whether there was an injury largely depends upon the answers to two questions:

  • Was there bodily harm?
  • Was there harm to personal or real property?

To legally prove a case of negligence, you must establish a cause-and-effect relationship between the negligent act of the person or company you are suing and the harm you suffered. (14)

Two Types of Causation

There are two types of causation. First, there is “factual cause” where you can clearly establish a connection between the negligent act and your injuries. (15) So, for example, a driver who runs a red light and hits your car has factually caused harm to you and your car.

There are situations, however, where factual cause is difficult to prove. This is especially true when several parties’ actions are in question and each party bears some degree of responsibility.

As an example, say you and your toddler are at a park where your child is playing in a sandbox with several others. You see some children fighting over a toy, and your child’s lip is cut and bleeding. It is clear from examining your child’s mouth that stitches are required. Which of the other children’s parents do you expect to pay the medical bills?

In such cases, “proximate cause” may be determined. Proximate cause is when a reasonably close connection between a negligent act and injury can be made. (16) Proximate cause considers several things, like logic, fairness, policy, and practicality to determine liability. (17)


Damages are the money awarded as compensation for injury due to some legal wrong. Different types of damages can be awarded: (18) (19) (20)

  • Actual (Compensatory) ― This is the damages for the actual harm the injured person has suffered.
  • Aggravated ― An amount of money awarded for emotional harm.
  • General ― Money awarded from a breach of contract.
  • Punitive ― Additional money awarded to punish the person or company being sued for harm that was deliberate or malicious.
  • Special ― Money awarded to cover related expenses such as lost wages.
  • Statutory ― Money awarded because the law specifically requires it.

A judge or jury determines the appropriate damages to be awarded after considering the evidence.

Obtaining Compensation

Usually, the person suing must only make a reasonable argument that the person or company being sued was negligent, even if there is a plausible argument they were careful.

You Were Careful and the Other Person Was Negligent

Sometimes, the cause and responsibility can affect the compensation the person you are suing may have to pay you.

An example would be a case that involves only two parties. You are careful, but the other party is negligent. The other party would have to pay the full damages awarded to you.

One example of this might be if you walk into a store where the floor is still wet after being mopped. No sign is posted indicating the floor is wet, and you slip and fall. The store would have to pay the full damages for your injuries.

If You Were Also Careless

But what if you were also careless? What if there was a sign posted but you did not read it? Your right to be compensated may be reduced to the extent your carelessness was responsible for the accident.

In awarding damages, the court might use a percentage to allocate fault. For instance, the court could determine that you were 30% at fault and whoever was being sued was 70% at fault. Damages would be awarded based upon the respective percentages of fault.

Liability and the Workplace

Employers may be held liable for the negligence of their employees, their properties, and their products.

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If a negligent person causes an accident while working for someone else, the employer is also legally responsible.

And, if an accident is caused on dangerous property or by a defective product, the owner of the property, or the maker or seller of the product, is liable. This is regardless of whether he or she actually created the danger or defect.

A Defense to Negligence

Sometimes the person or company being sued claims there is a defense to the lawsuit. The most frequent defenses to negligence lawsuits include: (21)

Comparative negligence ― “recovery is apportioned based on both party’s degree of fault.” Both of you caused the injury, but in different amounts. For example, you are driving down a highway, then make a sudden left turn, without signaling, and your car is struck by an oncoming delivery truck speeding.

Contributory negligence ― “both the defendant and the plaintiff can be at fault.” You can’t sue successfully because you were also at fault, even if just slightly. While driving, you are involved in a multicar pile-up and are injured; however, you were not wearing the legally required seatbelt at the time of the crash, which contributed to your injuries.

Assumption of risk ― You enter a dangerous situation “voluntarily,” knowing the risk. That means you are assuming the risk of injury; you had a choice to avoid it but did not. Let’s say you are at a beach. There is a sign posted that clearly states the hours a lifeguard is on duty. You want to go swimming even though a lifeguard is not on duty. You ignore the sign and swim anyway. Then you get caught in the undertow, slam into rocks in the water just offshore, and are seriously injured.

How Weitz & Luxenberg Can Help

Weitz & Luxenberg’s attorneys represent clients in negligence cases. We have a winning track record. Here are just a few examples of negligence cases we have won:

  • W&L secured a six-figure settlement on behalf of a woman injured on a plane. An international airline conceded responsibility after an elderly woman was struck in the head when a suitcase fell from an overhead bin.
  • W&L obtained a $2.96 million verdict in a workplace accident case. Part of our client’s leg was amputated by the fork of an overturned hi-lo, driven by a negligent coworker.
  • W&L recovered $10 million for a client injured in a bungee cord accident. A teenaged boy suffered blindness in one eye while on a school field trip involving a zip line.

Based on the current law, it can be difficult to establish grounds for a negligence case. An experienced attorney can provide the guidance for you to have your best chance of a successful lawsuit.