One of the most common claims that plaintiffs sue defendants for is that
of negligence. Negligence is defined as the absence of ordinary care which
a reasonably prudent person would exercise in the circumstance. A large
percentage of personal injury cases, spanning from
medical malpractice to
auto accidents, include negligence claims. Negligence is easier to establish than many
other claims, because it requires no intent on the part of the defendant.
Legendary Supreme Court Justice
Oliver Wendell Holmes was a staunch defender of the negligence doctrine. He argued that it allowed
any loss to lie where it falls, with the person responsible for the harm
directly paying the person harmed. According to Justice Holmes, the negligence
doctrine is derived from and consistent with this country’s capitalist
economic system, which focuses on individuals rather than communities
or the state.
The Elements of a Negligence Claim
To establish a negligence case, a plaintiff must prove the following elements:
1. Duty: The defendant must owe the plaintiff a legal duty
2. Breach of duty: The defendant must breach his legal duty to the plaintiff. The test is
whether a reasonable person, in the defendant’s shoes, would have
behaved the way the defendant did. If not, the defendant breached his duty.
3. Causation: The plaintiff must show that the defendant’s breach led to actual
harm to the plaintiff. Different courts use different tests for causation.
Among them are proximate cause, but-for cause, cause in fact, and causal tendency.
4. Actual harm: Plaintiff must demonstrate that the defendant’s breach actually
harmed the plaintiff. This harm can be physical, emotional, financial, etc.
If a judge or jury finds that each of these elements is satisfied by the
preponderance of the evidence, and the defendant cannot establish any
affirmative defenses, then the plaintiff’s negligence claim will
be successful. The next step would be to award damages.
Defenses to a Negligence Claim
There are four common defenses raised by defendants in negligence cases.
They are as follows:
1. Contributory negligence: In a few states, if the plaintiff contributed in any way to the harm he
experienced, he cannot collect damages from the defendant.
2. Comparative negligence: In most states, if multiple people (including the plaintiff) cause the
harm to the plaintiff, the defendant can still be liable for the percentage
of the harm he caused. Some states only find defendant liability if he
caused at least 50% of the harm, while others allow damages for any percentage
of the harm caused by the defendant.
3. Assumption of Risk: In some situations, the plaintiff takes on the risks associated with
a given activity or product, thus effectively shielding the defendant
4. Statutes of Limitations: The claim must be brought within a certain amount of time from when the
Defendants, particularly those with deep pockets, can often get creative
and aggressive in trying to establish defenses to negligence claims. This
is all the more reason why a plaintiff needs a zealous and effective attorney.
Pursuing a Negligence Claim
If you believe you have been harmed by another party’s negligence,
you should contact a personal injury attorney immediately. An attorney
can review the facts of your case and determine whether you have a viable
claim. If so, they can help you seek the compensation you deserve.