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Hello, I’m attorney Kyle Bachus. The legal world is full of overly complicated jargon and terminology that can be intimidating if you don’t know what it means. In my law 101 video series, I’m breaking down some commonly used legal terms so you can be informed and confident should you ever need to take legal action. In this episode of law 101, we’re going to talk about the term negligence.

Now negligence in the legal world actually has two different meanings.

Think of it like New York, New York, right? If you say, New York, New York, you said New York the city and then you have New York the state. Negligence also has two definitions: first negligence itself is just the failure to act reasonably under the circumstances in terms of your interaction with others, that’s it. But the second definition of negligence has to do with negligence the tort. Negligence the tort requires that you prove three things. First, you have to have a duty to act reasonably, which we all have in almost all circumstances.

You have to breach that duty and that breach of duty has to result in harm, actual harm in terms of injury to the person that you failed to act reasonably towards. The combination of that negligence, that breach of that duty, and the harm is the tort of negligence. That’s what negligence means in both settings under the law. An example of the tort of negligence would be let’s say you’re a homeowner, and you have a duty to make sure that the sidewalk in front of your home is kept free from ice and snow.

Let’s say that you have that duty, but you fail to go out there and put salt or shovel your sidewalk. And as a result, somebody walks down your sidewalk, and that’s a foreseeable thing for people to be doing. And somebody slips and falls on ice or snow that you failed to remove despite having a duty to do so. The combination of all of the above, meaning your duty, your failure to do what your duty required, and the resulting injury is negligence, the tort of negligence.

At Bachus and Schanker, one of the things that we do is represent people who are victims of the tort of negligence. So if you think that you’ve been the victim of the tort of negligence, as I just described it. Feel free to reach out to Bachus and Schanker, and we’ll be happy to answer any additional questions you might have. To learn more about other law topics that can help you feel informed and confident about the law, make sure to check out more videos in this series.

FAQ – Negligence

As defined by the Legal Information Institute, negligence is “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”

Within this definition, there are additional nuances that determine whether or not negligence has occurred by an individual or a party.  
When determining what is negligence in law, there are many things to consider. Let’s go over some of these nuances and more as we explore what negligence is as defined by law, whether it can apply to your circumstances, and what type of claims can be filed as a result of an individual’s or party’s negligence.

For a negligence lawsuit to be successful, plaintiffs must be able to present and defend the claims of negligence under these elements: 

  1. A duty of care is owed by the defendant to the plaintiff
  2. A breach of that duty has occurred
  3. A plaintiff has suffered an injury because of that breach of duty
  4. Proof that the defendant’s breach of duty was the cause of the injury. You often find this defined as proximate cause. 
  5. Damages have occurred as a result of the defendant’s negligent actions

The concept of legal duty exists in a variety of situations. In simplistic terms, duty is described as a legal obligation on the part of one person or party to another person or party. Suppose that an individual frequents a coffee shop. It is the duty of the coffee shop to keep the lobby free and clear of any dangerous obstruction. This could include but is not limited to: 

  • Keeping the floors clear of spills and tripping hazards
  • Keeping broken furniture and harmful objects away from customer spaces
  • Restricting access to dangerous locations, including the back room or kitchen

In some states or localities, there might be statutes or laws that define specific duties required of certain individuals or entities. For example, professionals such as medical doctors have a legal duty to uphold a specific standard of care toward their patients.

Determining whether a breach of duty has occurred can be a complicated process. Courts refer to the Hand Formula, which was developed by Judge Learned Hand in United States v. Carroll Towing. This formula helps establish whether a breach of duty has occurred. 

Simply put, if an individual or entity is obligated to certain duties, and they do not fulfill those duties, causing an individual to get hurt, this can be described as a breach of duty having occurred. 
When determining whether a breach of duty has occurred, it’s common for the beginning elements of causation to be explored as well. Causation is another legal term that examines the cause-and-effect relationship between an action or event and the result of that action or event.

In criminal cases, governments can bring forward lawsuits against individuals or entities that have violated laws or statutes. In civil cases, plaintiffs can bring forward lawsuits if they feel they were victims of wrongdoing and are seeking monetary damages. In the legal world, tort simply means a civil wrong. 

Negligence torts fall under the class of civil cases wherein plaintiffs seek legal action against an individual or entity that created unsafe conditions. Common examples can include the following: 

  • Slip-and-fall accident
  • Automotive accident
  • Commercial truck accident
  • Pedestrian and bicycle accident 
  • Medical malpractice

Proving negligence in a personal injury case can be an overwhelming task, even if the event seems cut and dried. When establishing a negligence lawsuit, the five criteria of negligence must be present. 

In order for the viability of these elements to be established, it’s important to have a good legal team with qualified paralegals and investigators who will collect evidence and compile the information to paint a clear image of what happened.  

Typically, the more concrete and tangible proof that can be collected, the stronger your negligence claim will be. As part of the collection process, investigators should look into, evaluate, and provide the following in a negligence suit: 

  • Surveillance footage of the event 
  • Witness testimony regarding the event 
  • Photos and documents pertaining to the event
  • Medical bills associated with the injury 
  • Doctor testimony about how the injury likely occurred

According to the Legal Information Institute, duty of care is defined as “a fiduciary duty requiring directors and/or officers of a corporation to make decisions that pursue the corporation’s interests with reasonable diligence and prudence.”

If a corporation or entity does not adhere to its standard duty of care, this can lead to a wave of negligence claims due to the wide-reaching nature of the defendant.

Unlike duty of care, reasonable care is defined as a level of care that a reasonable individual would exercise in any given situation, especially in similar circumstances of your case. As with duty of care, reasonable care can be critical in proving negligence has occurred. 
Click here to learn more about what is the reasonable person standard in negligence law.

As the name suggests, foreseeability is a legal concept that challenges whether or not an individual could reasonably foresee their actions as having the ability to cause harm. It’s important to note that in some instances, even if a defendant’s actions did not pose foreseeable harm to a scale of the harm that actually occurred, the defendant could still be found liable.

Actual cause is the legal concept that harm or injury was the immediate and direct result of an event. Actual cause is sometimes referred to as “cause in fact” and is typically very black and white. 

For example, if an SUV is stopped at a red light and a bicyclist is crossing the road but is suddenly hit by the vehicle after the driver steps on the gas pedal, the driver’s actions are the actual cause of the bicyclist’s injury.

Proximate cause is the legal concept that an individual’s actions which set in motion a chain of events that caused harm or injury to the plaintiff, is the cause of the harm or injury. 

Essentially, a proximity cause is the catalyst or cause that has the most significant impact in the event which led to the harm or injury. 

Unlike actual cause, it can be difficult to determine proximity cause. This is because you have to prove that a defendant’s actions were the cause of the harm or injury that occurred. 

Take, for example, the same SUV stopped at a red light. If the bicyclist was crossing the road and was struck by the SUV, one could be quick to say that the cause of the accident was the SUV driver hitting the gas pedal. 

However, if a pickup truck were speeding and struck the rear of the vehicle while at the red light, causing the SUV to lurch forward, this would make the pickup driver the proximal cause of the event that occurred.

Comparative negligence is a legal doctrine that allows plaintiffs to collect damages for pain and suffering even if they were partially at fault for causing the event that resulted in their injury. When comparative negligence is applied, the percentage of fault is determined and assigned to the plaintiff. This percentage will have an impact on how much compensation they can collect at the end of their case. The rules regarding comparative negligence differ from state to state.

Contributory negligence is a legal doctrine that determines that plaintiffs who contributed any fault to the event that resulted in harm or injury shall not collect damages from the party they are suing.

If you or a loved one have been the victim of personal injury due to negligence, you may be entitled to compensation for your losses. When you work with an experienced personal injury lawyer, you’ll have legal representation you can count on.


Legal Information Institute – Foreseeability. (2021).
Legal Information Institute – Duty of Care. (2022).
Legal Information Institute – Negligence. (2022).
Legal Information Institute – Reasonable Care. (2020).
Legal Information Institute – Tort. (2022).
United States v. Carroll Towing Co., (1947) 159 F.2d 169