Negligence and Tort Law


In general terms, negligence is the failure to use ordinary care through either an act or omission. That is, negligence occurs when:

  • A person does not exercise the amount of care that a reasonably careful person would use under the circumstances; or

  • A person does something that a reasonably careful person would not do under the circumstances.

Negligence claims are a very common basis for 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.

Negligence law varies between jurisdictions, particularly in relation to the award of damages in cases involving multiple defendants, and you should check with a local legal professional if you wish to know the specific negligence laws of your jurisdiction.

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.

Many accidents have more than one proximate cause. The law thus speaks of the defendant's conduct as being a proximate cause of an accident, as opposed to the proximate cause. In order to recover damages, it is not ordinarily necessary for the defendant's negligence to 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 as the result of a series of events. 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 each defendants' negligent acts were distinct and independent of the other's.

Imagine a case in which 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 driver who cut her off and the driver who rear-ended her – on the basis that their negligent acts, although independent, were both proximate causes of her injuries.

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 (that is, that the plaintiff's allegations are more likely than not):

  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.

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. It is sometimes necessary to establish gross negligence as opposed to ordinary negligence; in order to overcome a legal impediment to a lawsuit. For example, a government employee who is on the job may be immune from liability for ordinary negligence, but may remain liable for gross negligence.

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

When alleged to have caused injury through their negligent acts, minors may be held to a different standard of care than adults. Often, a minor's negligence will 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 (for example, 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. For example, if a defendant knows 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 than would be required if children were not present. Accordingly, 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.

Comparative Negligence

When comparative negligence applies, the damages a plaintiff is awarded will be reduced in proportion with the plaintiff's fault for his or her own injuries. For example, if a jury determines a plaintiff's damages to be $100,000.00, and finds that the plaintiff is 40% at fault. The plaintiff would be awarded $60,000 against the defendant.

Contributory Negligence

Where contributory negligenceprinciples are applied, if the plaintiff is found to have 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 this article on damages assessment.

Vicarious Liability

Vicarious liability occurs when one person is held responsible for the negligence of another. Vicarious liability often arises in an employment context, where the employer (master) is legally responsible for the negligent acts of the employee (servant) that 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 this article on legal agency.

Parents may potentially be held vicariously liable for the negligent acts of their children. Vicarious liability is most often claimed under principles of negligent supervision, alleging that the parent was responsible to properly supervise the activities of the minor child and that their failure to do so was a proximate cause of injuries caused by their child.

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 Dec 21, 2016.