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Negligence and How it is Determined in a Personal Injury Claim

People are liable to be negligent while they go about their daily activities such as work, play, or just transporting themselves in the process. These negligent actions can lead to different injuries – car accidents, work hazards, loading dock and pier accidents, slipping, medical errors, dog attacks, etc. When any of these happen, the plaintiff (injured person) may decide to file for injury claims from the defendant (negligent person).

When someone’s negligence gets you injured, you are permitted under the law to file for compensation for the pain and financial losses you suffered. However, this is not always easy to achieve, and it does not end with applying for an insurance claim. You will not be compensated unless you can prove that your injury was a result of negligence.

Proving and understanding negligence is usually challenging because of the careful analysis that must be made from the happenings of the incident. Below, we provide you with an in-depth explanation to understand what negligence is and how it is determined in a personal injury claim.

What is Negligence?

Negligence may simply be defined as a situation where someone fails to act in a way that signifies what a reasonable individual would do in the same situation. The plaintiff or their representatives must prove this theory of negligence, that is, establish that the defendant was negligent before it is legally binding on them to be responsible or compensate for injuries suffered.

This usually involves establishing that the defendant owed a duty of care, that they breach this duty, and the breach resulted in an injury to the plaintiff. In general language, if someone acts carelessly, they would be held accountable for the resulting damage or harm. When assessing many injury cases, the faults must be carefully determined for discussing the settlement or deciding the trial outcome.

For instance, in a car accident, everyone who drives owes a duty of care to conduct themselves properly and drive in a way that does not cause harm to other road users. If someone who drinks and drives causes an accident that results in an injury to someone else, they would be judged to have breached their duty of care and would be responsible for the damages caused. Over 50% of the five million yearly car crashes in the United States are caused by aggressive drivers, with speeding being the most prevalent contributor to this statistic. Despite roads being less congested as a result of the COVID-19 lockdown, car accident fatalities actually increased by almost five percent (4.6% precisely) during the first nine months of last year,” says Los Angeles personal injury attorney, Samuel Dordulian.

Elements of a Negligence

For an injury claim to stand against negligence, the plaintiff must be able to prove four things, also known as the elements of negligence – duty of care, breach of duty, causation, and damages. These elements would show whether or not the defendant acted with negligence or not.

  1. Duty: This means that the defendant has a legal responsibility to ensure the plaintiff’s safety.
  2. Breach: This situation means that the legal responsibility was breached by the defendant by acting (or not acting) in a particular manner.
  3. Causation: Causation states that the manner of action (or inaction) of the defendant directly caused injury or harm to the plaintiff.
  4. Damages: Under damages, it is proved that the plaintiff suffered actual damages from the defendant’s action.

How to Determine Negligence in a Personal Injury Claim

When trying to establish a personal injury claim, the first step involves proving that the person regarded as negligent (defendant) has a responsibility to put measures in place to avoid the injury. Then, the plaintiff has to show how the defendant failed concerning the said duty. This is what is known as the “breach.”

The facts involved in each case have to be considered to determine that the action or inaction of the defendant constitutes a breach. That is, it is not in line with the reasonable conduct required under such circumstances.

Establishing the Duty of Care

The duty of care varies for different situations. For instance, property owners are required by law to put safety measures in place for visitors, tenants, or workers. Those are also necessary to eliminate any danger within stipulated periods. Those are parts of their duty whose unavailability may constitute a breach.

In the same manner, road users must follow all traffic rules, in addition to driving carefully at all times. This is considered a reasonable requirement from them, and if there is a breach, they may be liable to pay a claim if it can be proved that the breach caused actual harm. Another well-known scenario concerns medical practitioners who must follow medical standards when taking care of patients. If negligence results in substantial damage, they may also be liable to compensate the plaintiff.

Establishing Breach of Duty

Establishing a breach of duty is proving the defendant’s violation. This is usually by stating exactly what they did or refused to do that isn’t in line with reasonable standards. Again, the appropriate measures for each case may be distinct.

In line with the instances above, it may mean showing that the property owner did not eliminate a danger on their property, indicating that the road owner did not follow traffic law, or that the medical practitioner did not go into a treatment room with all the tools they need.

A standard process of establishing a breach of duty includes referring to a finding in a police report, testimony by the plaintiff or an eyewitness, and presented evidence. In cases where the plaintiff contributed to the breach, that may lead to a reduced compensation or no compensation at all in states where contributory negligence is followed.

Establishing Injury

After the breach has been established, the plaintiff still has to prove that they suffered an injury and that the injury suffered was a result of the violation by the defendant. Actual damages may also come in the form of financial or property loss.


If you’ve suffered an accident that resulted from somebody else’s negligence, you may consider taking legal actions. Above, we‘ve explained all there is to know about the law of negligence. However, you may still need the service of an attorney or legal practitioner to help you get your claims.

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