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What is Negligence?

Everyone has heard of a story where someone acted careless, someone was injured, and a lawsuit followed to compensate the injured person. Negligence is the legal theory that allows injured persons to recover for the carelessness of others. A person is negligent if they were careless given the circumstances of the situation.

In terms of legal issues, the term negligence refers to an individual's failure to use reasonable care which results in injury or damage to another. The court will determine the meaning of reasonable care by comparing the actions of the defendant to the actions of other reasonable individuals in similar situations.

Because negligence is one of the primary claims found in tort law, negligence claims are often included in personal injury claims. The two main categories of torts are intentional torts and strict liability torts.

An intentional tort occurs when a defendant acts intentionally to cause injury to a plaintiff. A strict liability tort is one where a defendant can be found strictly liable based upon their actions rather than based on their intentions.

How Do You Prove Negligence?

Negligence has four major parts that must be shown in order to recover for injuries. Those parts are Duty, Breach, Causation, and Damages. Even if those four parts are shown, and negligence is established, a defense might still mitigate how much a defending party must pay.


A duty is a responsibility one person owes to another. In general, people going about their business owe a duty of ‘reasonable care.' ‘Reasonable care' is the care an ordinary and prudent person would use in the same situation.

For example, if a person is driving during a rainstorm they would be exercising ‘reasonable care' by driving slower and having their headlights on to increase visibility. A person would not be exercising ‘reasonable care' if they instead were driving forty miles per hour over the speed limit.


Breach occurs when an individual's care falls below the level required by their duty. The person driving forty miles per hour in the above example breached their duty of reasonable care by driving so quickly during a rainstorm.


The breach of a duty must be the cause of injury. The legal test for causation is a bit more complex than that, but the basic test is ‘but for' one parties actions the injury would not have occurred.

In the above example, if the person driving too fast during a rainstorm didn't have enough time to stop before hitting another car, then they have breached their duty of reasonable care which then caused injury to the other car.


In general, there has to be some sort of harm that occurred. The type of injury can vary, from property damage, to emotional stress, to lost wages.

All of the above need to be present in order to successfully determine that the other party was negligent. If one of the above cannot be proven, then negligence cannot be established.

What are Some Examples of Negligence?

The obvious example of negligence is personal injury, like the car crash mentioned above. However, negligence is a flexible idea that can appear in many contexts. Emotional harm, like PTSD, developing due to negligent conduct is also cause for a lawsuit.

Negligence can occur in the work setting. For example, an employer could be negligent by not giving an employee proper safety equipment which would have prevented an injury. Training and supervision can also be an area where an employer might be negligent that causes employee injury.

Businesses can also act negligently by making faulty goods that cause injury. Negligently making or designing goods for sale can also result in a lawsuit. Not testing a toaster to make sure it does burst into flames would be negligent making. Designing a toaster to be built out of flammable material would be negligent design. Both can land a business in hot water.

Lawyers are not immune to negligence claims. If a lawyer's conduct slips below the standard level of care of lawyers (which is higher than ‘reasonable care') then they can be sued for ‘malpractice.'

What Does Gross Negligence Mean?

Gross negligence is the extreme indifference to or reckless disregard for the safety of others. Gross negligence is more than simple carelessness or failure to act. It is willful behavior done with extreme disregard for the health and safety of others. It is conduct likely to cause foreseeable harm.

Negligence can be categorized as gross negligence if a defendant's actions rise to a level which is more serious than that which is found in an ordinary negligence case. For example, if an individual acted in a dangerous manner which they knew or should have known would cause harm to the plaintiff, they may be liable for gross negligence.

It may be difficult to distinguish between what is considered gross negligence and what is considered negligence. For example, negligence may occur when a defendant is speeding in a pedestrian zone. If, however, the defendant was traveling at 65 mph in a 25 mph zone, it may be considered gross negligence because of how fast they were traveling over the limit.

There is not a hard line distinction between negligence and gross negligence. It required an analysis of the circumstances of the situation and will vary depending on the facts of the case and the laws of the specific jurisdiction.

Are There Any Defenses to Negligence?

There are a variety of defenses to an allegation of negligence. The most obvious is to dispute any of the components of negligence (meaning duty, breach, causation, or damages).

Comparative and Contributory Negligence

Two related defenses are contributory and comparative negligence. Depending on state law, one or the other will apply but the general idea is the same. Both defenses ask whether the person injured is in some way responsible for the injury they suffered.

In contributory negligence jurisdictions, any negligence on the injury person is a total bar to recovery (meaning they get nothing). In a comparative negligence jurisdiction, the injured person can still recover but the recovery is reduced by how negligent they themselves were.

Assumption of the Risk

Assumption of the Risk is a defense that is essentially saying the injured person knew they were doing something inherently dangerous and chose to do it anyway. If this defense is successful, then the defending party will not have to pay for damages. For example, skiing is an activity that everyone knows could result in breaking a leg but people chose to ski anyway.

Do I Need a Lawyer If I Am Dealing with a Negligence Lawsuit?

Negligence can be a complicated and expensive problem. From negotiations with the other party, advising you on how to proceed, to speaking on your behalf in court, it is necessary to have the assistance of a personal injury lawyer with any claims involving negligence. The damages which may be recovered in a negligence case vary depending on the facts of the case, defenses which are available to the defendant, and the laws of the jurisdiction.

Your attorney will be able to explain the laws of your state, which claims or causes of action are best in your situation, and represent you during any negotiations or court appearances. It will be helpful to hire an attorney who is local to your area so that they are familiar with local laws and can easily travel in your jurisdiction to handle matters related to your case.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.