One of the most common types of personal injury causes of action is negligence (see also negligence per se). Negligence occurs when someone fails to exercise ordinary care. In most personal injury cases, the plaintiff alleges that the defendant was negligent. Sometimes, when the defendant believes the plaintiff was also at fault, the defendant will allege the plaintiff was negligent. An allegation such as this is known as comparative negligence.
How to Prove Negligence
In order to succeed on a negligence allegation, the injured party must prove four elements:
- Actual Harm
Each of these elements must be shown by a preponderance of the evidence (more likely than not).
Element One: Duty
The first element of a negligence claim is duty. The duty that an individual owes will depend on the circumstance. Normally, every individual has a duty to act as an ordinary and prudent person would act under same or similar circumstances.
Examples of exercising reasonable care while driving includes stopping at red lights and stop signs, using headlights while driving at night, and driving the speed limit.
Element Two: Breach
Once it has been established that an individual owed a duty the plaintiff must prove that the defendant breached that duty. Breach occurs when the defendant fails to meet their duty. In order to determine if a breach has occurred, a jury is asked to determine whether a person of ordinary prudence, under the same or similar circumstances, would have acted the way the defendant acted.
A plaintiff can only recover if the plaintiff can show that the defendant’s actions caused the plaintiff’s injury. There are two types of causation: actual cause and cause in fact.
Element Four: Damages
Finally, proof of damages is required in negligence cases. A jury cannot compensate the plaintiff if there has not been any type of harm. Harm, or “damages” can be shown through proof of economic or non-economic losses.