Understanding Negligence in a Personal Injury Claim

Negligence as a Legal Basis for Recovery

NegligenceWhen you’re injured because of the wrongful acts of another person, you have the right to take legal action to recover full and fair compensation for your losses. Most personal injury claims seek damages based on claims of negligence. Negligence alleges that another person caused injury because they were careless, not because they intended to cause harm.

What Is Negligence?

Negligence is a legal concept that describes a person’s state of mind and potential liability for losses and injuries caused by their actions. Historically, the principle of negligence came into U.S. law from the English common law as set forth in legal opinions written by judges.

The legal theory of negligence starts with the expectation that all people in society should exercise a basic standard (or duty) of care in all their actions. Negligence occurs when a person’s behavior falls below that standard. The breach of the duty of care (i.e., failure to meet the expected standard) may result from either a person’s affirmative conduct or their failure to take some reasonable action (an act of omission).

What Are the Required Elements to Successfully Prove a Claim of Negligence?

To meet the requirements of a negligence claim, an injured party, also known as a “plaintiff,” must show all of the following:

  • The defendant (the person being sued) owed the plaintiff a certain duty of care. A store manager who sees a spill on the floor has a duty to either clean it up or place a warning sign there so that customers don’t get hurt.
  • The defendant’s conduct fell short of meeting that standard. If the store manager ignores the spill and does nothing, they breach the duty of care.
  • The failure to meet the standard of care actually caused an accident, i.e., the accident would not have occurred had the defendant met the duty of care.
  • The accident and injury were reasonably foreseeable as a consequence of the failure to meet the standard of care. This is known as “proximate cause” and generally means that the type of injury suffered by the plaintiff is the kind of thing that might be expected to happen when someone does what the defendant did, as opposed to some kind of freak accident.
  • The plaintiff suffered actual losses as a consequence of the breach of the duty of care.

Because personal injury claims are civil suits, the burden of proof is lower than that required in a criminal prosecution. Though the language used can vary from state to state, the typical burden of proof in a negligence claim is “the greater weight of the evidence,” essentially a requirement that the plaintiff’s version of the facts must be more believable than the defendant’s.

Different Types of Negligence

Though most negligence claims are based on allegations of ordinary negligence, with the required elements set forth above, there are other forms of negligence that can affect the outcome of a personal injury claim based on negligence:

  • Gross negligence—This refers to an aggravated or extreme form of carelessness, such that it “shocks the conscience.” Whereas failing to stop at a red light or stop sign may constitute ordinary negligence, driving a motor vehicle at 100 miles per hour in a school zone at the end of the school day may qualify as gross negligence. When a court finds that there has been gross negligence, the plaintiff may be entitled to additional compensation, known as “punitive damages,” which is intended to deter such behavior.
  • Contributory negligence—The principle of contributory negligence prevents a plaintiff from recovering anything if they engaged in any behavior that “contributed” to causing the accident. Currently, only four states still apply this principle to personal injury claims.
  • Comparative negligence—Most states have replaced the concept of contributory negligence with some form of comparative negligence. With comparative negligence, the jury first determines the total amount of the plaintiff’s losses. Next, the court decides the degree to which the plaintiff was at fault for causing their own injuries and states that amount as a percentage of liability. The jury’s damage award is then reduced by that percentage. In those states adhering to the pure comparative negligence approach, an injured party may still recover damages even if they bear most of the responsibility for causing the accident. In those states that have adopted a modified comparative negligence standard, a plaintiff can only recover compensation if their liability falls below a specific threshold, typically 50%.
  • Vicarious negligence—This principal applies to assign liability to a person who did not actually engage in the act that caused the harm:
    • An employer can be liable for the negligent conduct of their employee.
    • A parent can be vicariously liable for the carelessness of a minor child.

What Damages Are Available in a Negligence Claim?

The damages available in a personal injury claim based on negligence are generally identified as either economic or non-economic losses. Economic damages (also known as “special damages”) are those that are tangible and easily calculated, whereas non-economic damages (also known as “general damages)” are subjective.

The common economic damages available in a negligence claim include:

  • Lost wages or income—The plaintiff may recover any wages or other compensation they would have earned but were not able to because their injuries prevented them from working. Recoverable wages and income include both past and projected future income lost because of the injury.
  • Unreimbursed medical expenses—A plaintiff may not recover for any medical costs covered by insurance but is entitled to reimbursement for any out-of-pocket medical expenses required because of the accident.
  • Property loss or damage—A plaintiff may recover the fair market value of any property destroyed because of another person’s negligence, any reduction in the value of property caused by an accident, or repair costs required because of an accident.

Noneconomic damages include:

  • Pain and suffering—Recovery may include compensation for discomfort or trauma suffered as a result of the accident. Many states prohibit or limit recovery for emotional pain and suffering.
  • Loss of enjoyment of life—You may be compensated for your inability to engage in activities that brought meaning or fulfillment to your life before the accident, or for your inability to engage in the simple acts of daily life, such as sitting, standing, and walking.
  • Loss of companionship or consortium—Damages may include an amount for the loss of the ability to be in intimate or close relationships with family members because of your injuries.
  • Punitive damages—If you prove the defendant was grossly negligent, you may be entitled to punitive damages, which are intended to deter reckless behavior.

What Is the Difference Between Medical Malpractice and Ordinary Negligence?

Medical malpractice is a form of negligence but differs from ordinary negligence based on the expected standard of care. In ordinary negligence claims, a person must act as a reasonable person would under the circumstances. In a medical malpractice claim, the standard of care element asks whether the defendant provided the level of care that a competent medical professional with similar training and experience would have provided in the same medical community.

Who Determines Liability in a Negligence Claim?

The jury makes the determination as to whether the defendant’s actions met or breached the standard of care and whether those actions caused the plaintiff’s injuries. In its deliberations, juries must give weight to how prior courts have ruled in cases with similar facts.


Most injury lawsuits allege negligence as a basis for liability. To prove negligence, you must show that the defendant failed to act as a reasonable person would, causing an accident and resulting in actual losses. In a personal injury lawsuit alleging negligence, you can seek damages for lost wages and income, loss of consortium or companionship, loss of enjoyment of life, unreimbursed medical expenses, physical pain and suffering, and any damage or loss of value to property.

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