In terms of legal issues, the term negligence refers to an individual’s failure to use reasonable care which results in injury or damage to another. The court will determine the meaning of reasonable care by comparing the actions of the defendant to the actions of other reasonable individuals in similar situations.

Because negligence is one of the primary claims found in tort law, negligence claims are often included in personal injury claims. The two main categories of torts are intentional torts and strict liability torts.

An intentional tort occurs when a defendant acts intentionally to cause injury to a plaintiff. A strict liability tort is one where a defendant can be found strictly liable based upon their actions rather than based on their intentions.

When a negligence claim arises, a plaintiff is responsible for proving that a defendant was negligent. There are four elements a plaintiff must show to prove a defendant’s negligence, including:

  • Duty;
  • Breach;
  • Causation; and
  • Damages.

These elements will be discussed in detail below.

How Do You Prove Negligence?

As previously noted, negligence is proven by showing the four elements listed above. The first element is duty.

In order to prove negligence, a plaintiff must show that the defendant had a specific duty that was owed to the plaintiff. In cases involving a professional or business individual as the defendant, proving duty will likely involve assessing applicable standards of professional conduct, duties to ensure customer safety, and other applicable standards.

The second element of negligence is breach. Once a plaintiff shows that a defendant owed them a duty of reasonable care, they must then show that the defendant breached that duty which they owed to the plaintiff. This is accomplished by analyzing whether the defendant was able to foresee the possible risks which could have impacted the plaintiff’s health or safety.

For the third element, causation, the plaintiff must show that the defendant’s breach was both the actual and immediate cause of the plaintiff’s injuries. The defendant’s liability may be reduced if it can be shown that there were other factors present which also contributed to the plaintiff’s injuries.

Lastly, the plaintiff must be able to measure the damages which they suffered. This means that the plaintiff must be able to quantify their damage into an actual, verifiable amount. For example, if the plaintiff is injured during surgery, they must demonstrate the amount of money that would be required to fix the injury, such as the cost of a second surgery.

It is important to note that there are various defenses which may be available to a defendant which may preclude or reduce a plaintiff’s claim for negligence. Defenses to claims of negligence often involve specific defense, including contributory negligence or comparative negligence.

These two defenses can serve to reduce a defendant’s liability due to the fact that the plaintiff was also responsible in part for their own injuries due to negligence on their own part.

What is Contributory Negligence?

Contributory negligence is the older of the two noted above which dates back to English common law. This legal doctrine provides that if a plaintiff is deemed to be negligent related to the incident at issue, they are not permitted to recover any damages from the defendant.

This is called a total bar to recovery. With contributory negligence, if a court or jury determines that a plaintiff was even 1% at fault for their injury, they receive no compensation.

This approach may seem extreme and it has been replaced over the years by other rules in many states. There are only a few jurisdictions which still use pure contributory negligence, including:

  • Alabama;
  • Maryland;
  • North Carolina;
  • Virginia; and
  • Washington D.C.

What is Comparative Negligence?

In the rest of the states which do not use contributory negligence, comparative negligence is used. There are three types of comparative negligence, including:

  • Pure comparative negligence;
  • Modified comparative negligence, or the 50% rule; and
  • Modified comparative negligence, or the 51% rule.

Pure comparative negligence permits a plaintiff to recover, even if they are 99% at fault for their injuries. The amount they receive in damages is reduced by the percentage of fault they have. States which use this rule include:

  • Alaska;
  • Arizona;
  • California;
  • Florida;
  • Kentucky;
  • Louisiana;
  • Mississippi;
  • Missouri;
  • New Mexico;
  • New York;
  • Rhode Island;
  • South Dakota; and
  • Washington.

The 50% modified comparative negligence approach bars a plaintiff from recovering if it is determined that they are 50% or more at fault for their injuries. It is important to note that their damages may still be reduced by their fault percentage. Stats which use this rule include:

  • Arkansas;
  • Colorado;
  • Georgia;
  • Idaho;
  • Kansas;
  • Maine;
  • Nebraska;
  • North Dakota;
  • South Carolina;
  • Tennessee;
  • Utah; and
  • West Virginia.

The 51% modified comparative negligence rule is the same as the previous rule, the percentage of the plaintiff’s negligence which bars their recovery is slightly higher. The idea behind this rule is that if the parties are equally at fault, the injured party should still be able to seek compensation, even if it is reduced. States which follow this rule include:

  • Connecticut;
  • Delaware;
  • Hawaii;
  • Illinois;
  • Indiana;
  • Iowa;
  • Massachusetts;
  • Michigan;
  • Minnesota;
  • Montana;
  • Nevada;
  • New Hampshire;
  • New Jersey;
  • Ohio
  • Oklahoma;
  • Oregon;
  • Pennsylvania;
  • Texas;
  • Vermont;
  • Wisconsin; and
  • Wyoming.

There are a few states which use a combination of these rules, so it is important to consult with an attorney if an individual is considering legal action because these rules may affect which approach is best for their case.

What Does Gross Negligence Mean?

Negligence can be categorized as gross negligence if a defendant’s actions rise to a level which is more serious than that which is found in an ordinary negligence case. For example, if an individual acted in a dangerous manner which they knew or should have known would cause harm to the plaintiff, they may be liable for gross negligence.

It may be difficult to distinguish between what is considered gross negligence and what is considered negligence. For example, negligence may occur when a defendant is speeding in a pedestrian zone. If, however, the defendant was traveling at 65 mph in a 25 mph zone, it may be considered gross negligence because of how fast they were traveling over the limit.

There is not a hard line distinction between negligence and gross negligence. It required an analysis of the circumstances of the situation and will vary depending on the facts of the case and the laws of the specific jurisdiction.

Should I Hire a Lawyer for Help with Claims Involving Negligence?

It is necessary to have the assistance of a personal injury lawyer with any claims involving negligence. As noted above, the damages which may be recovered in a negligence case vary depending on the facts of the case, defenses which are available to the defendant, and the laws of the jurisdiction.

Your attorney will be able to explain the laws of your state, which claims or causes of action are best in your situation, and represent you during any negotiations or court appearances. It will be helpful to hire an attorney who is local to your area so that they are familiar with local laws and can easily travel in your jurisdiction to handle matters related to your case.