Negligence Torts

In contrast to intentional torts, which require intent to act, negligence torts do not require any intent. In fact, negligence torts do not require any action — negligence torts include acts of omission as well as acts of commission. Negligence torts are often called “unintentional torts.”

Each negligence tort has four elements. The actor must owe a duty of care (see the following section) to the person injured; the actor must have breached (failed to meet) the duty of care; the breach of the duty of care must have caused the injury; the injured person must have suffered damages. The facts that support each of these elements varied from case to case, but each element is present in every negligence case.

Existence of a Duty of Care

We all owe a duty of care to others — to act in a way so that our conduct does not present an unreasonable risk of harm to others. The law also imposes a duty to act with appropriate care for one's own safety.

The duty of reasonable care is a two-sided duty. It encompasses the duty to act to prevent harm as well as the duty to not act if a risk of harm is present. This distinction is often referred to as the difference between acts of commission and acts of omission. When you chop down a tree without taking precautions to assure that the tree does not fall on your neighbor's house, you are negligent by commission — the action of chopping the tree is unreasonable. If you are involved in an accident because your brakes failed and the brakes failed because you did not have them serviced properly, you are negligent by omission — the failure to service the brakes is the unreasonable behavior.

We do not owe a duty of reasonable care to everyone in the entire world. No duty is owed when the risk of harm is not foreseeable.

Breach of the Duty of Care

Reasonable conduct does not violate the duty of care. Determining whether conduct violates the duty of care is a two-part process. First, we must decide what care is reasonable under the circumstances to set a standard of measurement. Second, the actual conduct must be compared to the standard of reasonable care.

The Standard of Care

Deciding whether the duty of reasonable care is breached starts with determining how a reasonable person would act under the circumstances.

This duty of care is called the “reasonable man” standard because it measures each person's conduct against the hypothetical reasonable man. The reasonable man is prudent in all his activities — he crosses the street at the intersection and on the light, reads every contract before signing, obeys every manufacturer's warning, and never exceeds the safe speed for the road conditions. The reasonable man is always aware of his surroundings and considers all foreseeable risks before acting.

Many negligence tort lawsuits focus on the standard of care. The defendant may concede the existence of a duty and even the injuries suffered by the plaintiff, but still claim the standard of care was not violated. For example, if someone falls on a homeowner's steps, the only argument might be whether the standard of care required the homeowner to perform more maintenance than he did.

Evaluating the Conduct

After the standard of care is established, it is time to evaluate the conduct of the defendant. If the conduct of the defendant shows reasonable care, the defendant has not committed a negligence tort.

If the conduct is below the standard of care, the defendant will be responsible for any injuries caused by his actions. As noted, the evaluation of whether the conduct violated the standard of care is often subsumed in the determination of what the standard of care is.


Many discussions of negligence torts merge the existence of a duty and the breach of duty requirements into a single statement: “The defendant was negligent.” This statement assumes that a duty existed and that the defendant breached that duty. Similarly, the statement that “The defendant was not negligent,” assumes that a duty exists, but that there was no breach of that duty.


A critical element in any negligence tort is causation. There must be a link between the violation of the standard of care and the injury. The law of torts requires that the unreasonable conduct be both the factual cause of the injury and the legal cause of the injury.

In most cases, factual cause is easy to establish. The plaintiff is involved in an auto accident and begins to have neck pain immediately thereafter. There is no prior history of neck pain and the plaintiff's symptoms are consistent with the type of injuries known to occur in auto accidents. The auto accident is the cause in fact of the plaintiff's injuries.

In other cases, cause in fact is hotly disputed. In one case, the plaintiff was the passenger in a car that was rear-ended by the defendant. Shortly after the accident, the plaintiff began having shoulder pain. Surgery was performed and the plaintiff's pain went away. She sued the defendant driver, claiming her shoulder was injured in the accident. At trial, the defendant presented evidence that it was physically impossible for the car accident to cause the plaintiff's shoulder condition. The jury found that the car accident was not, in fact, the cause of the shoulder surgery.

In addition to being the cause in fact, the unreasonable act must also be a legal cause of the injury. This requirement, known as proximate cause, states that the unreasonable act must be a substantial factor in bringing about the injury. Proximate cause becomes very important when the relationship between the unreasonable act and the injury is remote, calling into question the foreseeability of the injury. Proximate cause is also important when there are many causes of an injury — as when a negligently set campfire combines with a lightning strike to burn a barn.


Persons interested in tort reform often decry the proliferation of “junk science.” In most cases, this term refers to experts willing to testify to a causal link between the defendant's conduct and an injury that is not a well-accepted scientific fact. Proponents of tort reform call for the legislature to place parameters on allowable types of causation testimony. In fact, however, legal causation is not the same as scientific causation and the limits suggested by tort reformers could operate to exclude many valid claims for damages.


The final element of every negligence tort is damages. The unreasonable action must result in some injury to the plaintiff. The injury must be one that the law recognizes as compensable. The law allows plaintiffs to be compensated for physical injuries, mental and emotional injures, and monetary injuries as long as those injuries are actually suffered.

Recoverable damages fall into several categories. Compensatory damages are those amounts that will reimburse the plaintiff for actual losses. Out-of-pocket compensatory damages are medical expenses, repair costs, and lost wages. If the plaintiff will incur out-of-pocket expenses in the future, these amounts are also available as compensatory damages.

Compensatory damages also include damages for non-out-of-pocket losses. These damages, also called noneconomic damages or pain and suffering damages, are more subjective. They include items like pain, mental anguish, damage to reputation, and loss of companionship. Noneconomic damages often lack an objective dollar value.

Another major category of damages is punitive damages. These damages do not compensate the defendant for any injury. Instead, an award of punitive damages is designed to punish the defendant. When the defendant has engaged in a course of conduct that is beyond unreasonable to the point of recklessly disregarding the safety of others, the court may award punitive damages as a warning to deter similar conduct in the future. Most states have very strict requirements for when punitive damages can be awarded. In addition, the United States Supreme Court has also placed certain restrictions on how the amount of punitive damages is computed.

  1. Home
  2. Being a Paralegal
  3. Torts and Product Liability
  4. Negligence Torts
Visit other sites: