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Elements of Negligence

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Elements of Negligence 

Lawsuits based on negligence represent most of the civil cases filed in American courts.  A person is negligent when his actions fall below a legally recognized standard of care, resulting in injury to another.[1]  All persons have duties to each other.[2]  Duties include conforming behavior to meet appropriate minimum standards.  This standard helps to protect individuals from unreasonable harm caused by others.[3]  This legal standard varies from state to state and varies depending on the type of negligence being alleged.  To win a lawsuit against an allegedly negligent defendant, the plaintiff must prove four elements.  The elements are (1) duty (2) breach (3) causation and (4) damages.[4]   

The first element is duty.  A duty is an obligation imposed on all persons in society to exercise reasonable care in all their dealings.  Generally, the burden is on the plaintiff to show that the defendant owed them this duty.[5]  If the plaintiffs cannot prove they were owed a legal duty then there can be no breach of that duty[6] and no recovery in a negligence claim.[7] 

Certain individuals have a heightened duty of care to others.  This means they not only have a duty to act reasonably, they also have a duty to protect and provide aide to others.  The classic example is that of parent-child.  Parents have a duty to their minor children to not expose their children to unnecessary risk and to take affirmative steps to protect them. 

In many states, this type of duty is also imposed on employers to their employees; schools to pupils; hotels to guests; jailers to prisoners; and common carriers (i.e. buses, trains, and airplanes) to passengers.  In the workplace, practically all states impose duties on employers to control their employees.  Employers may be held liable for the actions of its employees or for their own negligence in hiring careless employees.[8] 

A heightened duty is also placed on professionals.  Society expects doctors, dentists, lawyers, accountants, and other professionals to performed their job with skill superior to that of the nonprofessional.  When they don’t, malpractice may occur. The standard of care in malpractice cases is often established by the expert testimony of others in that profession, by law, or by industry standards. 

There is a special duty imposed on landowners.  The duty is dependent upon the legal status of the person injured on the land.  If injured people enter land with permission, they are categorized as either an invitee or a licensee.  People on premises without permission they are trespassers

An invitee is owed the highest duty of care.  A business invitee is a person who is on the land to conduct commercial transactions.  For example, customers dining in restaurants are invitees.  A public invitee is a person on public land or land held open to the public.  Park goers, for example, are public invitees.  A landowner has a duty to take reasonable care to prevent injuries to any invitee on their premises.[9]  This includes a requirement to frequently inspect the land to ensure that it is safe.  This is why department stores and grocery stores have risk management associates who monitor the premises looking for possible dangers to customers.[10]    

A licensee is a person on the premises of another for non-commercial purposes.  Someone attending a party at the home of another is likely a licensee.  Landowners owe licensees a duty to warn them of known concealed dangers on the property. An example of a concealed danger would be a loose step on the porch or a very slippery walkway that is not obvious to a visitor.  Unlike that owed to an invitee, there is no duty to inspect for undiscovered hazards.[11]

A trespasser is someone who enters the land of another without permission.  Trespassers are owed the lowest duty.  In fact, virtually no duty is owed to unknown trespassers.  Most states, however, impose a duty to known (and foreseeable) trespassers to warn them of known artificial dangers on the property.[12]  So, while there is no duty to warn of natural dangers such as lakes or poisonous plants, the homeowner may not place booby traps or electric fences in places where there are foreseeable trespassers without warning them of the danger.     

Many states impose a special duty on landowners to trespassing children.  Trespassing children may get the same protection as a licensee or invitee if there is an attractive nuisance on the property.  An attractive nuisance is a dangerous artificial condition that may attract children.   There is a duty to exercise reasonable care so as to avoid harming the trespassing children.[13]  Common examples of attractive nuisances are swimming pools and construction sites. Therefore, for example, the owner would have a responsibility to put a fence up around a swimming pool that would keep children out. A sign that warns children to keep out may not suffice since it is foreseeable that they could ignore it.          

The second element is breach of duty.  If a legal duty is owed, the plaintiff must then show that the defendant breach that duty.  A breach occurs when the defendant’s conduct falls below that of the reasonably prudent person.  The “reasonably prudent person” is a fictitious creation used to measure whether certain behavior is too risky.[14]  Courts ask:  Would a reasonable person have behaved the way the defendant behaved if faced with a similar situation?”  If the answer is “yes” then the defendant did not breach his duty.               

The third element is causation.   Causation links the defendant’s breach of duty to the plaintiff’s injuries.  The causation inquiry asks whether a party should be held responsible for his actions and the injury these actions produced.  Causation is broken down into two categories, actual cause and proximate cause.[15]  To recover, the injured party must prove that the defendant was the actual cause and the proximate cause of the injuries sustained.

The actual cause can normally be determined by applying a “but-for” analysis.  “But-for” the defendant’s actions, the accident would not have happened.  This is a very straightforward inquiry and rarely leads to uncertain conclusions.

A defendant, however, may not be liable for injuries caused by events that he set in motion once a “cut off” point is reached. Even if a set the events in motion (the actual cause), he may not be responsible if the injury was too remote from the negligent behavior. In such a case, the defendant is not deemed to be the “proximate” cause of the injuries.  Typically, situations where responsibility has been cut off due to lack of proximate causation occur when other unforeseeable events (such as explained weather phenomena or the criminal acts of a third person) that are outside of the defendant’s control contribute substantially to the plaintiff’s injury.[16] 

Let’s look at an example:  Johnny Baseball was negligently hitting baseballs in a public park one afternoon.  One of the balls struck a woman walking with her grandson on a pedestrian walkway.  The impact from the ball knocked the woman unconscious.  The woman is transported to the hospital where it is determined that, though her injuries are not life threatening, she needs emergency surgery.  While awaiting surgery, a storm enters the area and the hospital is struck by lightning, setting the top floor of the hospital ablaze.  The woman suffers severe lung damage from smoke inhalation and dies one week later. While it’s true that, but-for Johnny Baseball’s negligence, the woman would not have been in the hospital on the day of the fire, Johnny’s liability would likely be “cut off” by the lightning and subsequent fire that lead to the injury that killed the woman.  The injury that killed the woman was unforeseeable to Johnny.  Thus, Johnny is not the proximate cause of her injuries and will not be held liable for her death.      

The final element is damagesDamages are the measure of what was lost or damaged as a result of the defendant’s negligence.  To recover, the plaintiff must show that he suffered a specific harm or loss.   Damages can include financial compensation for pain and suffering, medical expenses, lost wages, and property loss.[17]  Occasionally, a court may award punitive damages.  Punitive damages are an amount over and above those due the plaintiff.  Punitive damages are usually only available where the defendant engaged in extremely reckless conduct. 


[1] Restatement Second, Torts §§ 4, 5.

[2] See Browning-Ferris Industries of Georgia, Inc. v. Pitts, 520 S.E.2d 539 (1999) noting that there is a general duty owed to “all the world” to avoid unreasonable risk of harm. 

[3] 74 Am. Jur. 2d Torts § 10. 

[4] 74 Am. Jur. 2d Torts § 7.

[5] Restatement Second, Torts §§ 281(a), 304.  See also Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 (Tex. 2004). 

[6] See Luis v. Metropolitan Life Insurance Company, 142 F.Supp.3d 873 (N.D. Cal. 2015).

[7] 57A Am. Jur. 2d Negligence § 74.

[8] See generally 57B Am. Jur. 2d Negligence § 1096.  See also Am. Home Assur. Co. v. Nat'l R.R. Passenger Corp., 908 So. 2d 459 (Fla. 2005).   

[9] 62 Am. Jur. 2d Premises Liability § 160.

[10] See generally Rhonda S. Kaye, Liability of Owner or Operator of Store or Similar Place of Business for Injury Resulting from Defective or Dangerous Shelves, Displays, Racks, Counters, or the Like, 1 A.L.R.6th 297 (Originally published in 2005).  

[11] See 62 Am. Jur. 2d Premises Liability § 188 noting that active vigilance is not required on the part of a property owner to see that the premises are kept safe for the benefit of licensees. 

[12] Restatement Second, Torts § 336.

[13] Restatement Second, Torts § 339; 62 Am. Jur. 2d Premises Liability § 278.

[14] See, Restatement Second, Torts §§ 283, Comment e, 291, 292, Comment b.

[15] 57A Am. Jur. 2d Negligence § 414.

[16] See generally 57A Am. Jur. 2d Negligence § 559. 

[17] Restatement Second, Torts § 901; 22 Am. Jur. 2d Damages § 137.