Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.


Negligence is the failure to follow the degree of care that would be followed by a reasonably prudent person in order to avoid foreseeable harm.  A person can be negligent if he or she acts with less care than a reasonable person would use under similar circumstances.

 Bob drove a car on a country road at 35 miles an hour.  The maximum speed limit was 45 miles an hour.  He struck and killed a cow that was crossing the road.  The owner of the cow sued Bill for the value of the cow.  Bill raised the defense that since he was not driving above the speed limit, there could be no liability for negligence.  Was this defense valid?  No. A person must at all times act in the manner in which a reasonable person would act under the circumstances.  The fact that Bill was driving within the speed limit was only one of the circumstances to consider.  The weather or the condition of the road may have made it unreasonable to drive at 35 miles an hour.  Driving slower than the speed limit does not in and of itself prove that the driver was acting reasonably.

The reasonable person standard varies in accordance with the situation.  The degree of care required of a person is that which an ordinarily prudent person would exercise under similar circum­stances.  This does not necessarily mean a degree of care that would have prevented the harm from occurring.  This degree of care varies.  For example, if one is engaged in a service involving skill (such as a medical doctor) the care exercised by the doctor must be measured in light of what king of care an ordinarily prudent skilled person (i.e., a doctor) would exercise.  The question the jury seeks to determine is what care and skill would reasonably be expected under the circumstances involved in the case.

The elements required to establish negligence are:

  • the presence of duty;
  • a voluntary act or failure to act that breaches the duty;
  • proximate causation of harm; and
  • damages (i.e., the breach of duty causes harm to the plaintiff).

Torts involve duties created by law.  Just because someone is hurt does not mean that someone else must pay for the harm.  There must have been a duty which has been broken.  A plaintiff will not be allowed to recover from a defendant if the defendant did not break a duty that was owed to the plaintiff.  For example, if a burglar breaks into my house and trips over an item of furniture, I am not liable to the burglar because I had no duty to him.  However, if a guest in my house trips over a piece of furniture, I may have a duty to that guest.  The breach of duty must result from a voluntary act or failure to act.

Black was a voluntary psychiatric outpatient treated by Dr. Smith.  Dr. Smith became aware that Black was prone to violence.  Black told Dr. Smith that he intended to do serious harm to Jones. Shortly thereafter Black killed Jones.  The parents of Jones sued Dr. Smith on the theory that he was liable for the death of their son because he failed to give a warning to Jones or notify the police of Black’s threat and violent nature.  The court held that there was no liability because there was no duty to communicate any warning.  The court reached this result on the ground that psychiatry is not such a precise science that the doctor would know that a real danger existed, and it would tend to undermine the confidentiality of the psychiatrist-patient relationship if the psychiatrist were required to give such warnings.

 In order for someone to be legally responsible for damages, it is necessary to show that the wrongful act was the proximate cause of the harm. 

 The injury must be shown to be the natural and probable result or consequence of the act of negligence alleged to have been committed. The plaintiff must prove that any negligence of which the defendant is accused proximately caused the Plaintiff’s injury. There may be more than one proximate cause of an accident. Multiple acts of negligence by different people may cause the same accident, yet each may be deemed to be a proximate cause of the accident. Sometimes there is an intervening cause which comes after the original negligence of the defendant which may reduce the amount of the defendant’s liability. If this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all.

The final element of negligence is damages.  A plaintiff may recover monetary damages to compensate the plaintiff for economic losses such as lost wages and medical expenses.  A plaintiff may also recover noneconomic losses such as for pain and suffering.  Punitive damages may also be appropriate.  Punitive damages are designed to punish the defendant for his wrongdoing and are generally only appropriate if the plaintiff can prove gross negligence or willful misconduct by the defendant.

Inside Negligence