What is negligence?

Negligence is a legal concept usually used to achieve compensation for accidents and injuries. Negligence is a type of tort or delict and a civil wrong, but can also be used in criminal law. Negligence means conduct that is culpable because it misses the legal standard required of a reasonable person in protecting individuals against foreseeably risky, harmful acts of other members of society. Negligent behavior towards others gives them rights to be compensated for the harm to their body, property, mental well-being, financial status, or relationships. Negligence is used in comparison to acts or omissions which are intentional or willful. The law of negligence at common law is one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of this discussion.

Elements of negligence claims

In appellate court decisions, negligence suits have historically been analyzed in distinct stages. First, the defendant must have had a duty of care towards the claimant. The courts have long established that all persons have a duty to use that degree of care that an ordinarily prudent person would have used under the circumstances, so that, at trial, the existence of the “duty” is predetermined. However, the constitutional right to jury trial on fact questions has established overwhelmingly, at least in the US, that the determination of whether the behavior of a particular defendant in any given case constitutes negligence is ordinarily a unique question of fact for jury determination. Proving negligence does not, alone, support an award of damages.

Second, obviously from the definition above, the claimant must show that the defendant has breached that duty by not exercising reasonable care. The plaintiff must further show that the defendant’s negligence contributed to cause harm to the claimant. Fourth, the harm must not be too remote a consequence of the negligence; that is, the negligence must be a “proximate cause” of the harm.

Finally the claimant must be able to establish what kind of damages, or compensation, he should get for his or her harm. “The broad agreement on the conceptual model,” writes Professor Robertson of the University of Texas, “entails recognition that the five elements are best defined with care and kept separate. But in practice,” he goes on to warn, “several varieties of confusion or conceptual mistakes have sometimes occurred.”

Negligence per se

Negligence per se is the legal doctrine whereby certain acts are considered intrinsically negligent. This occurs when an actor’s violation of a statute (or regulation) causes the kind of harm the statute was intending to prevent. In some jurisdictions, negligence per se creates merely a presumption of negligence.

As a typical example, suppose a contractor violated a building code when constructing a house; the house collapses and somebody is injured. The violation of the building code establishes negligence per se and the contractor will be found negligent, so long as the contractor’s breach of the code was the cause (proximate cause and actual cause) of the injury.

What can I do?

If you or a loved one has suffered a serious injury as the result of negligence, you may be entitled to compensation. For a free legal consultation, contact us today!


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