Elements of Negligence

Elements of Negligence in the United States

Physical harm need not be intentionally caused. A pedestrian knocked over by an automobile does not hurt less because the driver intended no wrong but was merely careless. The law imposes a duty of care on all of us in our everyday lives. Accidents caused by negligence are actionable.

Determining negligence is not always easy. If a driver runs a red light, we can say that he is negligent because a driver must always be careful to ascertain whether the light is red and be able to stop if it is. Suppose that the driver was carrying a badly injured person to a nearby hospital and that after slowing down at an intersection, went through a red light, blowing his horn, whereupon a driver to his right, seeing him, drove into the intersection anyway and crashed into him. Must one always stop at a red light? Is proof that the light was red always proof of negligence? Usually, but not always: negligence is an abstract concept that must always be applied to concrete and often widely varying sets of circumstances. Whether someone was or was not negligent is almost always a question of fact for a jury to decide. Rarely is it a legal question that a judge can settle.

The tort of negligence has four elements:

  • a duty of due care that the defendant had,
  • the breach of the duty of due care,
  • connection between cause and injury, and
  • actual damage or loss.

Even if a plaintiff can prove each of these aspects, the defendant may be able to show that the law excuses the conduct that is the basis for the tort claim. We examine each of these factors below. (1)

Standard of Care

The purpose of the negligence standard is to protect others against the risk of injury that foreseeably would ensue from unreasonably dangerous conduct.

Duty of Care and its Breach

The law does not impose on us a duty to care for every person. The law copes with this difficulty by limiting the number of people toward whom we owe a duty to be careful. For more information about Duty of Care, please click here.

Causation: Actual Cause and Proximate Cause

Virtually any cause of an injury can be traced to some preceding cause. The problem for the law is to know when to draw the line between causes that are immediate and causes too remote for liability reasonably to be assigned to them. In tort theory, there are two kinds of causes that a plaintiff must prove: actual cause (see here) and proximate cause (see here).


For a plaintiff to win a tort case, she must allege and prove that she was injured. The fear that she might be injured in the future is not a sufficient basis for a suit. This rule has proved troublesome in medical malpractice and industrial disease cases. The law allows an exception to the general rule that damages must be shown when the plaintiff stands in danger of immediate injury from a hazardous activity. For more information about damages, please click here.

Problems of Proof

The plaintiff in a tort suit, as in any other, has the burden of proving his allegations. In many cases, circumstantial evidence (evidence that is indirect) will be the only evidence or will constitute the bulk of the evidence. For more information about problems of proof, please click here.


There are several excuses (defenses) that will completely or partially excuse the negligence of the defendant, including contributory negligence or comparative negligence, assumption of risk, and act of God. For more information about excuses and defences, please click here.

Vicarious Liability

Liability for negligent acts does not always end with the one who was negligent. Legislatures in many states have enacted laws that make people vicariously liable for acts of certain people with whom they have a relationship, though not necessarily one of agency. For more information about vicarious liability, please click here.

Elements of Negligence in Personal Injury Claims

There are several elements of negligence necessary for establishing liability in a personal injury claim. See information about injury claims and about Injury Settlement in this legal Encyclopedia.

Slight negligence

Contresens: Slight negligence means failure to exercise the foresight and circumspection that an extraordinarily prudent person would exercise. See Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.



  1. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.

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