What is Negligence?

Accidents happen and injuries result. But not all injuries are compensable under the law.  Negligence is a legal concept that courts have invented over time to determine which injuries are compensable and which are not. All legal elements, or parts, of negligence must be met in order to have a cause of action for negligence.  In essence, negligence consists of duty, breach, causation and damages. All of these elements are linked.


Duty is the threshold question regarding whether liability exists. We all have a moral duty to behave reasonably and to act with care toward one another.  And although a general duty to act reasonably exists between people, that duty does not extend to all people. The more attenuated the relationship, the more attenuated the duty.  There must be some sort of relationship, or privity, for that duty to arise.

The issue of duty rests on foreseeability. If it is foreseeable that your action will cause harm to a particular person, you will likely owe that person a duty to act reasonably. If it is not foreseeable, it is likely that you do not owe a duty to that particular person.  If this sounds confusing, it often is. This element has occupied courts for many years.

The seminal case on duty and causation is Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928).  A passenger, hurrying to catch a train, was carrying a plain paper package which contained fireworks. Nothing about the package would have alerted a person as to its contents.

A train employee reached down to pull the passenger up and onto the moving train at the same time that another train employee pushed the passenger onto the train from the platform. The package fell from the passenger’s hands and exploded. The shock from the explosion knocked a set of scales down at the other end of the platform. The scales injured the plaintiff who sued the railroad.  The court found no duty based on the lack of foreseeability between the railroad’s actions and the injury to this plaintiff.


If you have a duty toward a person and you fail to act reasonably in your actions toward that person, that constitutes breach. For example, if you drive a car, you owe a duty to everyone on the road to drive with reasonable care. If you are texting while driving and an injury occurs, you will have breached your duty of reasonable care to that injured person.


In order to have a compensable case of negligence, the breach of duty must be the proximate cause of your damages.  Proximate cause is a legal concept somewhat related to foreseeability.  Let’s say that you spill some milk on the floor of your kitchen when you have guests over.  You forget to clean it up and go into the living room to be with your guests while one of them comes into the kitchen to get some water.  She doesn’t see the spilled milk, and slips and falls.  In this case you had a duty to use reasonable care to take care that your guests come to no harm while in your home. You breached that duty by forgetting to clean up the milk and it was forseeable that one of your guests could have come into the kitchen. There were no intervening issues that could have caused the injury.  Therefore, you proximately caused the injury.

But what if you spilled the milk, and your guest was tap dancing in the kitchen, showing off her dancing skills to another guest, while that guest then spilled her wine right next to the milk and the tap dancer slipped but was unsure what substance she slipped in? While you may have breached your duty to your guest by failing to clean up the spilled milk, that breach may not have been the cause of the injury. In that case, the element of proximate cause may not be met.


In order to have a compensable case of negligence, there must be injury proximately caused by the breach.  If the injury is related to another accident or a previous condition, the element of damages may not be met.

Perhaps the most famous case on damages is Liebeck v. McDonalds.  In that case, the plaintiff sued McDonalds when the coffee she ordered through a drive through window was hotter than expected and burned the plaintiff. The plaintiff sued for $20,000 and she was awarded $200,000 (reduced by 20% to $160,000 due to a finding that the plaintiff was 20% responsible for her injury). In addition, she was awarded $2.7 in punitive damages. This has been a controversial case, but the all elements of negligence were met. The defendant was unsympathetic toward the plaintiff and her injuries and refused to settle. The award stands.

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