Proving Negligence In a Personal Injury Case

If your personal injury claim is based on negligence (as most are) you must be able to prove a few key elements.

By , J.D. · University of San Francisco School of Law

In most personal injury injury cases, the issue of fault hinges on a legal concept known as "negligence." In this article, we'll look at what it takes to prove that the at-fault party's negligence was the cause of the underlying accident and your resulting injuries.

"Fault" By Any Other Name

Keep in mind that when you and your attorney negotiate a personal injury settlement with the other side, you won't necessarily be relying on these legal concepts when discussing your accident, and you may not need to prove fault at all. The cause of your accident may well be obvious, and the only question may be how much compensation is appropriate. Even if one of the elements we're discussing here is at issue in your case, chances are you won't be hearing or using the legal terms as they're presented here. Instead, you (or your attorney) and the insurance adjuster or defendant will almost certainly negotiate using general language about whose fault the accident was and how much your claim is worth.

The Duty of Care: Let's Be Reasonable

A duty of care is an obligation to avoid injuring someone else or placing them in the path of danger. In most situations, every person owes at least some measure of care toward others. The only questions are usually:

  • to whom is a duty of care owed, and
  • if there is a duty, how broad is it?

In some situations, determining the applicable duty of care is difficult because there are no laws (like a vehicle code) that spell out how a person should act.

For example, a grocery store has some duty of care toward its customers' safety, but there are no specific legal guidelines on just exactly what the grocery store owner must do to satisfy that duty. The law simply requires that the store take "reasonable" steps to ensure customer safety—such as regularly checking the floors for spills and not putting heavy objects on high shelves. But how frequently must the store check for spills, and how high is too high? Unfortunately, there's no precise answer. If a customer has an accident involving store safety, the argument revolves around whether steps taken by the store qualified as "reasonable."

"Breach" of Duty: Careless Action (or Inaction)

It's one thing to recognize that there is a duty of care involved in an injury situation. The next question is whether the person who owed the duty lived up to his or her legal obligations. If not, the law calls that person's actions "negligent," or careless. Put another way, the person breached the duty of care by creating or allowing a dangerous situation above and beyond the normal level of risk we encounter while going about our daily lives. Whether the duty of care was met is the issue on which most accident cases turn.

In some cases, determining whether the duty of care has been breached isn't all that difficult. For example, when a speed limit is posted, the duty of care involves observing that limit. Whether a driver was really going over that limit might be easy to show, with witness statements attesting to the car's rate of speed. If the jury believes these witnesses, they'll conclude that the driver breached that duty. Similarly, a car must stop at a red light (duty of care), but was the light red when the car entered the intersection (breach)? Again, the witnesses may be able to clearly say yes or no.

In other situations, deciding whether the duty of care was breached is more difficult, because complying with the duty isn't an "all or nothing" proposition. Think again about the example above of the speed limit. While it may be simple to show whether a driver was going over the posted speed, this isn't the end of the inquiry. As you no doubt know, drivers must always obey a "universal speed law," which directs them to drive safely under the circumstances, even if this means going slower than the posted speed. A driver's ability to show compliance with the speed limit doesn't necessarily prove the driver was obeying the universal speed law. That issue involves determining what would have been a safe speed under the circumstances.

A Causal Link

Usually, once you have shown that someone has breached a duty toward you—for example, broken a traffic law or failed to fix a loose stairway handrail—you have established that person's legal responsibility for your injuries. But in some circumstances, the other person may claim that even if he or she was negligent (breached a duty), that negligence was not the cause—or not the sole cause—of the accident.

For example, you may be able to show that another driver failed to signal before making a left turn. However, the other driver may reply that you had a stop sign and should not have entered the intersection at all until the other car had cleared it, regardless of whether it was turning. In the case of the stairs, the owner of the property may claim that your fall was not caused by the loose handrail but by your own carelessness in bounding up two stairs at a time in an effort to get into the apartment and charge your dead phone. Learn more about shared fault for an accident.


In legal lingo, "damages" refers to the physical and emotional injuries, property damage, and lost income someone suffers as the result of an accident. When it comes time to negotiate a settlement, your damages—or more specifically, the amount of money you want as compensation for your damages—will be the main point of contention.

To learn more about proving fault in your case, it might be time to talk with an attorney. Learn more about finding the right personal injury lawyer for you and your case.

Most of this article is excerpted from the book, How to Win Your Personal Injury Claim, by Attorney Joseph Matthews (Nolo).

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