In most personal injury cases, the claimant or plaintiff (the injured person) relies on the legal concept of "negligence" to establish the other party's fault for the accident giving rise to the case. So, what is negligence? In this article, we'll explain this liability concept through an illustration of some of its key elements— including the duty of care, and the "breach" of that duty.
In a personal injury claim or lawsuit, the first step in proving that another person was negligent is to establish that he or she had a duty of care in the situation that gave rise to the injury. The injured person (the plaintiff) will then need to show exactly how the other party (the defendant) failed to meet that duty—in other words, how the defendant's conduct "breached" the duty of care. Once this breach is established, the last step in proving negligence is to show that the plaintiff suffered real injuries that were caused by that breach.
For a plaintiff in an injury case, demonstrating a breach of care requires showing that actions taken (or not taken) by the defendant failed to meet the required level of reasonable care under the circumstances. But what exactly is "reasonable" in a given situation? It depends on the facts of each individual case. But let’s look at a car accident—and a resulting insurance claim or personal injury lawsuit—as an example.
"Duty of care" is a legal term that refers to the responsibility one person has to avoid causing harm to another.
A vehicle driver has a legal duty to operate his or her vehicle with reasonable care at all times, which includes taking into consideration factors like traffic conditions, weather, and visibility.
State legislatures have enacted vehicle codes and traffic codes which identify drivers’ legal obligations in some situations (yielding, for example) and prohibit certain driving-related conduct in other scenarios (like driving above the speed limit). So in most cases, if Driver A violates a driving law, he or she will be said to have breached the duty of care to other drivers, passengers, and pedestrians, if Driver A’s conduct caused an accident in which others were injured.
Here are some more examples of the duty of care in other kinds of injury-related cases:
Once the duty of care is established, the plaintiff’s job (usually through his or her personal injury attorney) is to establish exactly how the defendant violated (or "breached") that standard of care. What did the defendant do (or fail to do) that made his or her conduct unreasonable under the circumstances? In other words, how exactly should the defendant be considered legally at fault for causing the plaintiff’s injuries?
Going back to the car accident case example, fault can be established by:
In some cases, the plaintiff’s own conduct may have played a role in causing his or her injuries (alongside the defendant’s own negligence). Continuing with the car accident scenario, the defendant may have indeed made an abrupt left turn in front of the plaintiff’s vehicle (a clear example of negligent driving) but if the plaintiff was driving a few miles an hour over the speed limit, the insurance adjuster or the jury might decide that the plaintiff’s own negligence was at least a factor in causing the accident. (Learn more about when the other side disputes fault for the accident.)
In that situation, the plaintiff’s total compensation or damages award will be reduced by an amount equal to the percentage of his or her fault. That’s the rule in most states. (Learn more about comparative fault.) But in a few states that follow a system known as contributory negligence, if a plaintiff is found to be even one percent to blame for causing the accident, he or she won’t be able to collect any damages at all from other at-fault defendants.
The last step in establishing negligence is to show how the plaintiff was harmed by the defendant's action (or inaction). We've got this element covered in other sections of this website: Learn more about personal injury damages and the damages formula.