The tort of negligence is at the center of personal injury law.
This common law cause of action allows you (the plaintiff/injured person) to hold someone else (the defendant) legally responsible for harm caused by that person’s failure to use reasonable care.
Put another way: A person is negligent and potentially liable for your losses by failing to do what a reasonable person would do or doing what an ordinarily prudent person would not do under the same or similar circumstances to avoid injury to another.
Negligence emerged as a way to get a legal remedy (compensation) for injury or loss caused by another relatively recently, growing in popularity in the 1800s with the Industrial Revolution and the building of railroads.
Indeed, negligence lawsuits seeking compensation for personal injury and property damage make up the largest litigation category in Virginia courts and most other states. Federal and state courts nationwide have entered judicial opinions in thousands of cases where an injured person sought a monetary award based on this tort.
Courts, however, have declined to give bright-line rules on what acts or omissions they consider negligence in each circumstance because they understand the infinite number of situations where a person’s conduct could cause harm and give rise to such a claim. No set of rules would cover all human interactions.
Instead, the case law establishes formulas that divide negligence into smaller pieces – elements – and uses the flexible “reasonable person” standard.
This article identifies and explains the elements of negligence under the law in Virginia and other states. Proving these elements is often the only way to recover money from someone whose carelessness caused injury to your body, brain, or property.
Keep reading to learn more about proving your negligence claim so you can negotiate a car accident settlement or win at trial before a judge or jury.
We hope you use this information on common law negligence claims to help you recover money in tort and personal injury lawsuits based on construction accidents, motor vehicle crashes, maritime accidents, defective products, medical malpractice, railroad worker injury, slip-and-fall accidents, and bicycle wrecks.
Call us if you have questions about your legal rights after reading this article: (804) 251-1620 or (757) 810-5614.
Our top-rated personal injury attorneys represent injured persons in Virginia and Maryland from our Richmond, Newport News, Baltimore, Hagerstown, Cambridge, and Maryland offices. And we are ready to start on your case.
Black’s Law Dictionary 1245 (11th Ed. 2019) defines the term “negligence” as “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.” Negligence includes “any conduct that falls below the legal standard established to protect others against unreasonable risk of harm.”
The Virginia Model Jury Instructions use a similar negligence definition: the failure to use ordinary care. Then, the instructions define “ordinary care” as the care a reasonable person would have under similar circumstances.
These simple, straightforward negligence definitions have led to thousands of legal disputes and volumes of case law grappling with what a “reasonable person” would do when presented with the same situation as the plaintiff and the defendant in the lawsuit.
Courts have created formulas dividing negligence into elements to answer this question and decide when an injured person can recover for someone else’s failure to act reasonably.
This article divides the negligence tort into four elements.
However, courts, attorneys, and academics disagree on how many elements you must prove to recover damages for negligence and what they should be.
For example, Professor David Owen found that most states (34) divide negligence into four elements, with several other courts fitting negligence claims into three parts. In addition, the Restatement (Third) of Torts, two courts, and some academics support a five-element approach to negligence actions.
Although breaking the negligence tort into parts is helpful to know what facts you must plead in the complaint and what evidence to develop and present, we recommend that you not treat the elements as stand-alone items when you bring the lawsuit, negotiate with the insurance company, mediate a settlement, or try the case before a judge or jury.
You can (and should) often use the same evidence to prove the categories necessary to recover money for negligence.
People involved in injury lawsuits often use the word “negligent” to describe the conduct of the person who harmed them.
But winning a negligence action for personal injuries requires you to prove these elements:
Let’s examine each element of a negligence claim.
The first element of a negligence lawsuit is showing the defendant had a legal obligation (duty) to use reasonable care to protect you from harm.
You cannot recover money under a negligence claim unless the defendant owes some legal duty to you.
Whether a legal duty exists is a question of law, meaning the court (judge) serves as the gatekeeper to the negligence claim. You cannot recover for negligence if the defendant had no obligation to act as a reasonable person would to protect you from injury or loss.
Usually, you can prove the defendant was obliged to behave with a certain standard of conduct under the common law (legal doctrines stated by judges in written decisions) – even if a stranger caused the accident and injuries.
It is easy to satisfy the duty prong of the negligence formula because case law says a person has a general duty to exercise due care to avoid injuring others, regardless of the legal relationship between the parties.
This duty is “owed to mankind generally … not to do any act which a person of ordinary prudence could reasonably apprehend, as a natural and probable consequence thereof, would subject [another person] to peril.”
Further, a person owes this standard duty of reasonable care to all within reach of their conduct:
[W]henever one person is by circumstances placed in such a position with regard to another . . . that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or the property of the other, a duty arises to use ordinary care and skill to avoid such injury.
In addition to the case law, you can use statutes, industry rules, company policies, and agency regulations to prove the defendant should have acted a certain way in the situation that resulted in your injury but did not.
But be careful of exceptions to the general rule that a person must exercise reasonable care to avoid causing others harm. In some situations, such as rescuing a person in danger, courts have limited the duty of care or even eliminated it, making it difficult to recover damages under a negligence claim.
The second element in a negligence action is proving the defendant failed to use the standard level of care required by the law.
You satisfy this element when you prove that the defendant failed to act as a reasonable, prudent person would have under similar circumstances. This failure may be a specific act or an omission.
Whether a defendant breached the standard of ordinary care is a question of fact that depends on the case’s circumstances. Therefore, the jury, not the court (judge), decides whether the defendant’s conduct was reasonable. Of course, the judge could overturn the jury’s verdict by finding that no reasonable jury could find the defendant violated the standard of ordinary care.
You have proven the defendant’s negligence if you satisfy this element of the cause of action.
However, the defendant’s liability for damages to you depends on proving the remaining negligence claim elements.
Causation is the third element in a negligence lawsuit.
Showing the defendant behaved negligently is insufficient to recover damages under the law.
You must also show a connection (cause-and-effect) between the defendant’s conduct and your injury or loss.
Many courts and attorneys treat causation as two distinct parts: causation in fact (“but-for”) and legal causation (proximate cause). This division explains why some courts and academics say there are five elements of negligence, not four.
This part of the causation test is often easy to prove.
You prove factual causation if the evidence shows your injury would not have occurred but for the defendant’s negligent conduct.
In negligence lawsuits, proximate causation addresses whether logic, fairness, and practicality justify holding the defendant liable for your harm.
Courts have recognized that proximate cause “is a concept difficult to define and almost impossible to explain …” But that has not stopped them from trying.
One definition of proximate cause is:
An act or omission is the proximate cause of an event if, in natural and continuous sequence, unbroken by any efficient intervening cause, it produces the event.
In determining proximate cause, the factfinder will decide if your harm was a foreseeable risk of the defendant’s act or omission.
An event can have more than one proximate cause, particularly in legal and medical malpractice claims.
As the injured person, you should understand the court may refuse to allow recovery if the defendant’s negligent act or omission was too remote from your injury.
However, you can reduce this risk by introducing evidence that shows (1) that the defendant’s act set in motion the events that caused you harm and (2) that it was foreseeable that the defendant’s action or omission would cause you harm.
Compensating injured persons to make them whole – putting them as close as possible to their pre-injury position – is the primary goal of negligence actions under tort law.
Therefore, in most negligence actions, you must plead and show the defendant’s negligence caused actual physical injury or psychiatric (mental) impairment. Otherwise, you will not recover damages under the law.
Examples of the types of damages you can allege in a negligence case include:
You can learn more about damages in personal injury claims here.
This element is a critical distinction between negligence actions and intentional tort claims.
In claims arising from intentional torts such as assault, battery, or defamation, you can receive an award of money damages, including nominal (minor) damages, without actual bodily injury.
The term “negligence” is thrown around often.
But you must do more than point at the defendant’s behavior to recover money for negligence under the law in Virginia and other states. You must also satisfy each of the elements of negligence claims.
This article identifies the elements and summarizes what they mean so you can use the legal process to make yourself whole when someone else causes you loss. And you can learn more about the types of negligence (ordinary, gross, and willful and wanton) here and the applicable burden of proof when alleging someone’s negligent acts harmed you.
If you feel comfortable pursuing a civil action seeking compensation alone, great! Many courts allow plaintiffs to proceed pro se without an attorney.
But if you want high-quality legal representation to get the maximum amount available for your negligence claim in Virginia or Maryland, call us at (804) 251-1620 or (757) 810-5614.
We handle the investigation, paperwork, and presentation while you focus on healing.