What Is Negligence? A Guide To Negligence

The Doctrine of Negligence

Through the years of evolving as a society, some of our most basic human principles were adopted by our courts. These sets court-adopted principles, known as “common laws,” have helped govern our society for generations, and as a result, we have some basic understandings of how disputes and issues among ourselves should be resolved.

For example, we know that if someone is injured in a car accident, then we know that the person at fault is liable for their injuries. Or say you destroy someone’s property; we know that you’ll likely be on the hook to repair or replace the damaged property.

One of the most fundamental principles of civil tort litigation is: if a person suffered damages due to the fault of another person, then they should be entitled to compensation for those damages.

The root of civil tort litigation is what as known as the doctrine of negligence.

What is Negligence?

Negligence is defined by Black’s Law Dictionary as:

The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights; the doing of what a reasonable and prudent person would not do under the particular circumstances, or the failure to do what such a person would do under the circumstances.

The concept of negligence first emerged out of English law around the eighteenth century and was adopted by most states in the United States (save Louisiana) as common law. Today, although the fundamental elements remain the same, negligence has evolved into various specific types for various situations.

What are the Elements Necessary to Recover Damages for Negligence?

In Texas personal injury laws, the elements of negligence can be broken down as followed:

A Duty Exists – This element is defined as “an obligation that is owed or due to another.” For example, if you own a store and expect customers to shop at your location, you have a duty to ensure that your property is reasonably safe for your customers or anyone else that may enter. Another example would be if you were driving on the road. You have a duty to ensure that you’re paying attention at all times and not distracted or under the influence to ensure that you make the road reasonably safe for others; other drivers owe that same duty to you. This is the base element to which the rest of the elements are based upon.
Breach of Duty – A violation of duty, or obligation, that is owed to another. Taking our first “store owner” example, that would mean not ensuring your store or property was safe for others, such as unmopped spills or securing loose ceiling tiles that could fall. For drivers, that would mean being on your cell phone or driving intoxicated or anything else that would violate your duty to ensure that the other persons you’re sharing the road with are safe.
Proximate Cause / Causation – The breach of duty was the cause of the victim’s injury. In Texas injury law, to prove Proximate Cause you must demonstrate that the breach of duty was the Cause-in-Fact and that the injury caused by the breach was foreseeable. Cause-In-Fact, itself, has a two-pronged test which are the “But For” test, which determines if the injury wouldn’t have occurred if the breach didn’t occur, and the “Substantial Factor” test, which determines whether the breach was so closely related to the injury that took place. Foreseeability is answered by determining if the injuries caused by the breach were foreseeable, or predictable, enough that a normal person, or (in some cases) a similarly specialized person acting in their role, should have known of the possibility of the injuries if they breached their duty. Understandably, this sounds like a lot to take in, but let’s trackback to our examples. As the “store owner,” if an unmopped spill or a loose ceiling tile injured your customer, we can likely satisfy all of the causation elements and tests. The injury would not have occurred “but for” you not mopping the unspilled mop or secure the loose ceiling tiles, which were a substantial factor in the customer’s injury. Let’s say the spill or the hanging ceiling tile was reported to an employee at your store who failed to act or report it to anyone else who can manage these issues, having known that the spill was unmopped or the ceiling tiles should have been secured, a reasonable person could have foreseen that an injury could have occurred. As the negligent driver, we can also satisfy these elements. The car accident would not have occurred “but for” your distracted driving or driving under the influence, which, if there were no other at-fault drivers, would likely be the substantial factor in the accident. A reasonable person, who is licensed to drive, should be able to foresee that distracted driving or driving under the influence could have resulted in an accident.
Damages – An injury or damages needed to have occurred. If an injury is suffered due to a breach of duty which was the proximate cause, the victim is entitled to compensation for these economic and non-economic damages such as their medical bills, subsequent treatment, lost wages, lost future income, scarring, pain and suffering, loss of consortium, loss of companionship, etc. You cannot file a negligence claim based on what could have happened but what did happen. For example, as the “store owner” if the unmopped spill was discovered by a customer or the ceiling tile fell without anyone being injured, the customer who was safely away from the incident cannot sue for damages that could have happened and did not actually occur. Frivolous lawsuits with no tangible damages to the victim are typically thrown out of court, often with attorneys who file them being sanctioned for wasting the court’s time.

As we can see, each element further down the line is dependent on the previous element to be satisfied, building up a solid case against the defendant for their negligence.

Here is a more visual outline of the elements of negligence:

A DUTY EXISTS
BREACH OF DUTY
BEACH WAS PROXIMATE CAUSE OF INJURY
1. BREACH WAS CAUSE IN FACT
  1. INJURY WOULD NOT HAVE OCCURRED “BUT FOR” THE BREACH
  2. BREACH WAS “SUBSTANTIAL FACTOR” TO INJURY
2. INJURY DUE TO BREACH WAS FORESEEABLE
VICTIM SUFFERS REAL DAMAGES DUE TO BREACH

What are the Different Types of Negligence?

Active Negligence
Advertent Negligence
Casual Negligence
Collateral Negligence
Comparative Negligence
Concurrent Negligence
Contributory Negligence
Criminal Negligence
Culpable Negligence
Gross Negligence
Hazardous Negligence
Hybrid Comparative Negligence
Imputed Contributory Negligence
Imputed Negligence
Inadvertent Negligence
Joint Negligence
Negligence per se
Ordinary Negligence
Passive Negligence
Professional Negligence
Slight Negligence
Subsequent Negligence

What Civil Areas of Practice Involve Negligence?

Car Accidents
Truck Accidents
Aviation Accidents
Dram Shop and Liquor Liability
Slip and Fall Injuries
Premises Liability
Defective Products
Wrongful Death
Animal Attacks and Dog Bites

These are common areas of practice for every seasoned personal injury lawyer to practice as all of these deal with the negligent acts of others.

What Should I Do If I’m a Victim of Someone’s Negligence?

Calling an expert injury lawyer who has experience in dealing with personal injury negligence and law could help. In some cases involving negligence, such as a car accident, the case can be fairly clear. In other cases, it might be a little more complex to determine liability and damages.

For example, in Texas, if a bar or restaurant overserves you to the point that you become a clear danger to yourself and others, the bar could be held liable for any injuries you or another person may sustain as a result of you being overserved. This area of practice is called “dram shop” or “liquor liability” that punishes bars and restaurants that negligently over-serve their guests who go on and injure themselves or others.

Speaking with an injury lawyer means hiring a trained expert in the law and legal aspects of negligence and how it pertains to your specific case.

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