The Elements of Negligence

Negligence is the legal theory under which most personal injury cases are brought. Typically, these types of cases arise when one person (the defendant) engages in careless actions or omissions that cause harm to another person (the plaintiff). As a result of the defendant’s careless actions that injured the plaintiff, the plaintiff may have a cause of action against the defendant for negligence.

Negligence can be defined as follows: “A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.” This is the definition of negligence my torts professor taught me in law school. When we talk about “ordinary prudence,” we’re typically talking about the “reasonable person.”

So, when we’re analyzing a negligence issue, we ask: “What would the reasonable person do?” Although this analogy doesn’t work for every type of negligence claim, it’s a good, common sense way to think about the law of negligence and how it works. Is this type of behavior reasonable?

Under the law, we have to break negligence down into elements that a plaintiff must prove before winning a case. After all, we can’t walk into the courtroom and say to the jury, “Hello there, jury. What do you think a reasonable man would have done here?” Accordingly, the law breaks negligence down into 4 elements: (1) Duty; (2) Breach; (3) Damages; and (4) Causation. The plaintiff must prove each of these elements by the preponderance of the evidence. In this article, we’re going to will talk more about each of these elements in detail.

What Types of Actions Could Lead to a Negligence Claim?

A variety of situations can lead to a negligence claim. For example, if a driver of a car carelessly injures another person, the injured person may have a claim against that careless driver for negligence. In the same way, if a store negligently leaves soapy water on the floor without any kind of warning to patrons, and then someone slips and falls, the person who slipped may have a claim against the store for negligence. Any situation where a person negligently harms another person could potentially serve as the basis of a negligence claim.

Common Examples of Negligence Actions

Some of the more common negligence actions involve the following:

There are many more types of negligence cases than those listed above. In fact, any situation where a person’s careless, reckless, or intentional actions hurt another person could result in a personal injury claim based on negligence.

The 4 Elements of Negligence

As we talked about above, negligence is broken down into 4 main elements, each of which the plaintiff must prove by a preponderance of the evidence. Each of the elements of negligence are listed below:

The defendant owed a duty of care to the plaintiff;
The defendant breached the duty by a negligent act or omission;
The plaintiff suffered an injury or damages; and
The defendant's breach was the actual and proximate cause of the plaintiff’s injury.

Simply put, the elements of negligence are duty, breach, damages, and causation. Let’s talk about each element in turn.

The First Element of Negligence: Duty

In negligence law, the basic premise is that we generally owe our fellow citizens a duty to exercise reasonable care in the conduct of our own affairs. This duty does not require that we avoid all injury to others, but only that we avoid injuring others by careless behavior. Thus, the defendant essentially owes a duty to foreseeable plaintiffs to conform to a certain standard of conduct, which is typically the “ordinary reasonable person” standard. A defendant who fails to conduct himself accordingly breaches his or her duty to the plaintiff.

Hypothetical to Explain The Element of Duty

For example, if a driver (“Driver Dave”) is driving in downtown Orlando, Driver Dave owes a duty to the pedestrians in the area (clearly foreseeable plaintiffs) to pay attention to the road, not text while driving, and stop at stop signs. If Driver Dave is scrolling through Instagram and runs over Pat the Pedestrian, Driver Dave has breached his duty to Pat, which leads us to the next element of negligence.

The Second Element of Negligence: Breach

In a typical negligence action, the defendant will be held to the “ordinary reasonable person” standard. This essentially means that a defendant who fails to conduct himself or herself as the ordinary reasonable person would under similar circumstances breaches his or her duty to the plaintiff.

Hypothetical to Explain The Element of Breach

Let’s look at a hypothetical. Let’s say Driver Dave pulls out his phone and starts texting while driving in downtown Orlando. As a result, he fails to see the stop sign. He runs the stop sign and runs over Pat the Pedestrian. Clearly, Driver Dave has failed to act as the ordinary reasonable person would act while driving in downtown Orlando. Thus, Driver Dave has breached his duty of care to Pat by playing on his cell phone, failing to pay attention, and running over Pat with his car.

The Third Element of Negligence: Damages

Damages can be thought as the plaintiff’s loss. In other words, the defendant’s negligent actions caused the plaintiff to suffer losses. When we speak of “losses,” we’re talking about a variety of losses that could result from a serious injury. Some of the more common types of damages are the following:

Medical bills and emergency room bills;
Bills for rehabilitation;
Pain and suffering;
Missed work and lost wages;
Loss of future earning capacity;
Loss of enjoyment of life; and
Loss of Consortium.

Some of these damages, like medical bills, are what we call “economic damages.” Other damages, like pain and suffering, are what we call “noneconomic damages.” The dollar amount of a plaintiff’s damages can be more easily calculated for economic damages, such as medical bills and bills for rehabilitation. However, to come up with a value for noneconomic damages, like pain and suffering or loss of enjoyment of life, it may require an expert’s opinion because these damages are not easily quantified.

Regardless, all the damages above are meant to compensate the plaintiff for his or her losses with the overall goal of making the plaintiff whole. The goal is essentially to pay the plaintiff back for what the defendant took.

Whereas economic and noneconomic damages are meant to make a plaintiff whole, punitive damages are meant to punish a defendant’s for the most egregious types of behavior. Punitive damages are reserved for those situation when the defendant acted with a wanton disregard for the safety of others or with a high degree of recklessness. The Florida Statute describes it as “a conscious disregard or indifference to the life, safety, or rights of [other] persons.”

Apportionment of Fault in Negligence Cases

The total amount of damages awarded to a plaintiff may be apportioned based upon fault. In other words, if there are multiple defendants that caused the plaintiff’s damages, each defendant may be assigned a percentage of fault for causing the plaintiff’s harm. So, Defendant 1 may be 30% at fault and Defendant 2 70% at fault.

Additionally, the plaintiff may be assigned a percentage of fault. Thus, the defendant may be 50% at fault, and the plaintiff may be 50% at fault. Depending on the state where the negligence claim is brought, this determination of fault could be extremely relevant and could prevent recovery. So, damages may be calculated based on the plaintiff’s fault versus the defendant’s fault.

Each state may have different rules regarding apportionment of fault. Below are some examples of different states’ laws regarding fault and comparative negligence.

Modified Comparative Negligence

There are a couple different variations in modified comparative negligence states. For example, Georgia is a 50% modified comparative negligence state, which means that a plaintiff who is less than 50% at fault may file a claim and receive compensation. If a plaintiff is 50% or more at fault, he or she may not recover.

In other modified comparative negligence states, like South Carolina, the watermark is 51%. In other words, the plaintiff must be less than 51% at fault to recover. The overall effect is the same: if you share half of the blame or more for the accident, you may not be able to recover.

Under the law in Florida, a plaintiff can recover for the defendant’s negligence only if the plaintiff is 50% at fault or less. This is more like the law in Georgia and a little more restrictive for plaintiffs than in South Carolina.

Pure Comparative Negligence

Prior to March of 2023, Florida was a pure comparative negligence state, which means that a plaintiff could recover for his or her injuries, even if the plaintiff was mostly at fault (more than 50%). This is no longer the case in Florida. However, some states, like Arizona and California still follow the pure comparative negligence standard.

Contributory Negligence

North Carolina, on the other hand, is a contributory negligence state, which means that a plaintiff who is at fault in any way may not be able to recover, even if the plaintiff is only 1% at fault and the defendant is 99% at fault.

The Fourth Element of Negligence: Causation

So, we have thus far talked about duty, breach, and damages. We have a defendant who has breached a duty to the plaintiff, and the plaintiff has injuries. Now, we ask whether the defendant’s breach of its duty is the cause of the plaintiff’s damages. In other words, may we fairly attribute the plaintiff’s injuries to the defendant’s negligent actions such that the defendant should be held liable for the plaintiff’s damages? This is what causation is all about.

Causation can be broken down into 2 parts: (1) actual cause or “but for” cause and (2) proximate or “legal” cause. Now, let’s talk about actual cause and proximate cause in more detail.

Actual Cause

Actual cause asks whether the defendant’s actions led to the plaintiff’s harms. Another way we might approach actual cause is to ask whether the plaintiff would’ve suffered injury but for the actions of the defendant. For this reason, we sometimes describe actual cause as “but for” cause. We can see where this could get troubling.

Hypothetical to Explain Actual or “But For” Cause

Let’s use a hypothetical to describe some issues with actual cause. Imagine Bob parked his car on the street and forgot to lock his emergency brake. Bob walks down to the neighborhood bar for several hours to watch some football games. While Bob is at the bar, his car rolls down the hill and bumps into a trash can, which then rolls down an alley way and tips over a can of gasoline. Several minutes later, Jim walks into the alley to smoke a cigarette. A vicious neighborhood dog, a dog that is known for attacking people, jumps up and knocks the cigarette out of Jim’s hand and then runs away.

When Jim reaches down to grab the cigarette, he slips on grease that his neighbor, Gertrude, spilled on the concrete a day earlier and forgot to clean up. Jim falls onto the concrete and lands in gasoline. He then accidentally bumps the cigarette, which slowly rolls down into the puddle of gasoline. The gasoline ignites into a fireball and burns Jim’s body all over.

Which party should be held liable for Jim’s injuries? Is Bob, the owner of the car who forgot to pull the emergency brake, liable for the crazy burns Jim suffered? What about the person that left the gasoline unattended? What about Gertrude, the grease-spiller? What about the person that owned the violent dog that knocked Jim down? What about each of these people’s mothers? After all, had they not been born, they wouldn’t have contributed to Jim’s injuries.

As you can see, actual or but for cause can be traced back to people that our society agrees should not be held liable, even though they may, technically, have contributed to someone’s injuries. Society does not want to walk too far up the causal chain and hold people liable for a result they could not have foreseen or reasonably avoided. This is why we have proximate cause: to limit the number of links in the causal chain and to avoid preposterous results.

Proximate Cause

Now that we have discussed actual cause, let’s talk about proximate or legal cause. Proximate cause asks whether public policy concerns and concerns of fairness should allow us to hold a person liable for a person’s injuries. Specifically, proximate cause looks to whether the type of harm that occurred was foreseeable. Without proximate cause, we could trace harms back to people that should not be held liable.

As we just talked about, if a defendant’s mother had never birthed the defendant, then the defendant never would have harmed the plaintiff. Does that mean we should hold the defendant’s mother liable for the plaintiff’s injuries? Of course not. The but for causal chain has to be cut off somewhere, preferably somewhere fair, and that’s why we have proximate cause.

Thus, not all injuries the defendant “actually” caused will be deemed to have been proximately caused by his or her acts. To prove negligence, we need both actual and proximate cause.

Schedule Your Free Legal Consultation with a Personal Injury Attorney at Our Law Firm.

If you have been injured as a result of the negligence, recklessness, or carelessness of another party, you should speak with a skilled, aggressive, and experienced Florida personal injury lawyer as soon as possible because you may be entitled to compensation. You can contact us online or you can call our Orlando, Florida law office at (321) 352-7588 to schedule your consultation.

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