Negligence and Tort Law


In general terms, negligence is the failure to use ordinary care through either an act or omission, resulting in harm. That is, negligence occurs when there is a duty to act with reasonable care and injury results because:

  • somebody does not exercise the amount of care that a reasonably careful person would use under the circumstances;
  • somebody does something that a reasonably careful person would not do under the circumstances; or
  • somebody fails to take an action that a reasonably careful person would take under the circumstances.

Negligence is often claimed in personal injury lawsuits. For example, a personal injury lawsuit arising out of an automobile accident case or premises liability action is frequently based on the theory that the defendant was negligent. Please note that negligence law varies between jurisdictions, sometimes significantly, and you should check with a local legal professional if you wish to know the specific negligence laws of your jurisdiction.

The Elements of a Negligence Action

A typical formula for evaluating negligence requires that a plaintiff prove the following four factors by a "preponderance of the evidence":

  1. The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff);
  2. The defendant violated that duty;
  3. As a result of the defendant's violation of that duty, the plaintiff suffered injury; and
  4. The injury was a reasonably foreseeable consequence of the defendant's action or inaction.

For example, a person driving a car has a general duty to conduct the car in a safe and responsible manner. If a driver runs through a red light, the driver violates that duty. As it is foreseeable that running a red light can result in a car crash, and that people are likely to be injured in such a collision, the driver will be liable in negligence for any injuries that in fact result to others in a collision resulting from the running of the red light.

Negligence vs. Gross Negligence

Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. Proof of gross negligence thus involves proving all of the elements of an ordinary negligence action, plus the additional element of recklessness or lack of substantial concern for others.

It is sometimes necessary to establish gross negligence as opposed to ordinary negligence in order to overcome a legal barrier to a successful lawsuit. For example, a government employee who is on the job may be immune from liability for ordinary negligence, but the employee and state agency may remain liable if the plaintiff proves gross negligence.

Proximate Cause

Proximate cause exists where the plaintiff is injured as the result of negligent conduct, and plaintiff's injury must have been a natural and probable result of the negligent conduct. In order for a defendant to be liable, the plaintiff must establish both negligence and proximate cause.

The law speaks of the defendant's conduct as being "a proximate cause" of an accident, as opposed to "the proximate cause". Many accidents have more than one proximate cause. It is typically not necessary for liability that the defendant's negligence be either the only proximate cause of an injury, or the last proximate cause. A defendant may be liable even where an injury has multiple proximate causes, and whether those causes occur at the same time or in combination. A plaintiff may be able to bring a cause of action against two or more defendants by proving that the acts of each were proximate causes of the plaintiff's injury, even where the defendants' negligent acts were distinct.

Imagine a situation where a plaintiff is driving down the road, and is suddenly cut off by a person who runs through a stop sign on a side street. The plaintiff slams on her brakes, and is able to avoid striking that car. However, the plaintiff is rear-ended by another driver who was not paying attention to the events in front of his car. The plaintiff may be able to bring an action against both drivers - the one who cut her off and the one who rear-ended her - on the basis that their negligent acts, although independent, were both proximate causes of her injuries.

Release Agreements

Sometimes a plaintiff will sign a release agreement pursuant to which the plaintiff waives injury claims against the beneficiary of the agreement. For example, a release agreement may be required before the plaintiff is permitted to participate in a sports competition. For public policy reasons many jurisdictions will apply the release only to conduct which constitutes ordinary negligence and not to acts of gross negligence.

The reason for this is quite simple: It is not good public policy to allow a defendant to escape liability for reckless indifference to the safety of others, particularly in contexts where the defendant is responsible for creating unsafe conditions, or is profiting from their existence.

Consider, for example, a commercial venture engaged in a high-risk recreational activity, such as a company that offers rock climbing tours. If a tour member is injured when safety equipment provided by the company unexpectedly fails, a valid release may protect the company from a lawsuit. However, if the company knows up front that the equipment is defective and uses it anyway, it would not be protected by the release.

Children and Negligence

Minors are typically held to a different standard of care than adults. For example, a minor's negligence may be evaluated against what reasonably careful person of the same age, mental capacity and experience would exercise under the same or similar circumstances. Very young minors (e.g., minors under the age of seven) are typically presumed to be incapable of negligence.

Most jurisdictions also consider the fact that minors act upon childish instincts and impulses when considering injuries to minors. As a consequence, a defendant knew or should have known that a child (or children) were present, or were likely to be present, in the vicinity, the defendant may required to exercise greater vigilance. By way of example, a person driving by an unfenced playground where children often play baseball should be on alert that a child may impulsively chase a ball into the street.

Damages in Negligence Cases

When a person suffers an injury or loss due to the negligence of another, and succeeds in a negligence action, the injured party is entitled to compensation. When there is only one defendant, and that defendant is solely responsible for the injury or loss, then the defendant will be ordered to compensate the injured party for all of that party's compensable losses. However, when fault is shared by more than one party, or where more than one person is responsible for the injury, the calculation of damages can be more complex.

Joint & Several Liability

Depending upon state law, the award of damages in a negligence case may be joint or several:

  • Joint liabilty: All defendants in the case are individually liable for the full amount of damages suffered by the injured plaintiff, even if one or more do not have money to pay their share of the damages.
  • Several liability: Each defendant is liable to compensate the plaintiff in proportion to that defendant's responsibility for the injury suffered by the plaintiff. If a defendant is responsible for ten percent of the injury, that defendant is liable for only ten percent of the damages awarded. If any individual defendant is unable to pay that defendant's portion of the damages, the plaintiff goes uncompensated for the unpaid share.
  • Joint and several liability: All defendants are individually responsible for the damage suffered by the plaintiff, but may seek compensation from other defendants if required to pay damages in excess of their proportionate responsibility for the injury. For example, if two defendants are each found to be 50% responsible for a plaintiff's injury, but one pays the entire damage award, that defendant may attempt to recover the payment in excess of 50% from the other co-defendant.

Comparative vs. Contributory Negligence

Where fault for an injury is partially attributable to the injured party, states may reduce the amount of compensation that the injured party receives.

  • Comparative Negligence: When a state applies the principle of comparative negligence, the damages a plaintiff is awarded will be reduced in proportion with the plaintiff's fault for his own injuries. (e.g., a jury determines a plaintiff's damages to be $100,000.00, and finds that the plaintiff is 40% at fault. The plaintiff would thus be awarded $60,000 against the defendant.)
  • Contributory Negligence: When a state follows the rule of contributory negligence, if the plaintiff in any way contributed to his or her own injury, the plaintiff is barred from recovering damages. The extreme consequence of this approach has led to its being limited or abandoned in many jurisdictions. One historic limitation has been to examine the context of an accident to determine who had the "last clear chance" to avoid its occurrence, and to excuse a plaintiff's contributory negligence where the defendant is found to have had and to have failed to exercise that "last clear chance".
  • Mixed Comparative and Contributory Negligence: Some states follow a mixture of comparative and contributory negligence, whereby a plaintiff who is less than fifty percent at fault may recover damages reduced by the plaintiff's proportion of fault, but a plaintiff who is more than fifty percent at fault may not recover damages, or may recover only a percentage of economic damages, against the defendants.

More information on damages can be found in the article, How Are Damages Calculated After an Injury or Lawsuit.

Vicarious Liability

Vicarious liability occurs when one person is held responsible for the negligence of another. Typically, this applies in an employment context, where the employer (master) is responsible for the negligent acts of the employee (servant) which occur within the context of the employment relationship. For example, an employer may be liable for an accident caused by an employee as the result of the negligent operation of a delivery vehicle. More information on liability in agency relationships can be found in the article, Principals, Agents, and Tort Liability.

At times, parents may be held vicariously liable for the negligent acts of their children. However, many jurisdictions have limited the vicarious liability of parents, and some have eliminated it.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Sep 20, 2017.