Proving Negligence in a Personal Injury Claim

If your personal injury claim is based on negligence - as most are - you must be able to prove four legal elements to win your case.

In most accident & injury cases, the issue of fault hinges on a legal concept known as "negligence," and more precisely, on the four key elements of a negligence claim: duty of care, breach of duty, causation, and damages. This article takes an in-depth look at all four elements.

Keep in mind that, when you negotiate your claim for insurance compensation, you probably won't be using these legal concepts to discuss 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 these issues does arise in your case, chances are you won't be hearing or using these legal terms. Instead, you and the insurance adjuster will almost certainly negotiate using general language about whose fault the accident was and how much your claim is worth.

Duty of Care

A duty of care is an obligation to avoid injuring someone else or placing them in the path of danger. In most cases, every person has at least some duty of care toward others. The only questions are, to whom is a duty of care owed, and if there is a duty, how broad is it?

In some situations, determining the 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 the store to take" reasonable" steps to ensure customer safety -- such as regularly checking the floors for spills and not putting heavy objects precariously 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

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 it. 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 too 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? 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.


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 answer the phone.


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. Our damages section has everything you need to know.

This article is an excerpt from the book, How to Win Your Personal Injury Claim, by Attorney Joseph Matthews (Nolo)

Make the Most of Your Claim

Get the compensation you deserve.

We've helped 285 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you

Talk to a Personal Injury Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you