Negligence In Personal Injury Cases

It is very easy to be careless in your everyday life. Unfortunately, sometimes that carelessness can cause someone else to get hurt or injured. In a personal injury court case, that carelessness is called negligence.

Negligence comes in two different forms: an action or an in-action. An action is when someone physically does something that causes injury to another. For example, if a construction worker throws a brick off a building and it hits someone below, this is a negligent action.

The second type of negligence, an in-action, is a failure to act when carrying out an action could have helped prevent an accident occurring. For Example, if that same construction worker did not fix a broken light fixture and it fell injuring someone, it would qualify as a negligent in-action.

In order to prove negligence in a personal injury case, four additional things must be proven. These include that the person in the wrong owed a “duty of care” to the injured person; that they “breached this duty”; that their breach of duty was the “cause” of injury; and that someone suffered “damages” because of their actions or inactions. In order to fully understand how negligence is used in a personal injury case, those four terms need to be defined.

Duty of Care

Duty of Care refers to the responsibility we all have to take actions to prevent harm to others. When an average person could foresee that an action or inaction could have negative consequences, then courts assume that everyone would foresee these possible consequences. Sometimes these actions are obvious. For example, if we are driving through a crosswalk while someone is crossing, we all know that we could run over that person and injure them if we don’t stop and let them cross.

Conversely, it can be difficult to prove if an action or in-action will lead to an injury occurring to another person. For example, after an ice storm, our driveways are often very slippery. Is it our duty to prevent falls by cleaning them off? How long should it take to clean them off, an hour, a day? Sometimes town regulations can help determine these cases, but often it comes down to what your opinion of what an average person would do in the same situation.

Breach of Duty After it has been determined that an average, or reasonable, person would have a duty of care in a situation, then you must prove that the defendant failed in this duty. This is called a Breach of Duty. In our earlier situation, a town has decided that everyone has a duty of care to clean off their driveways within two hours of a snow storm. If a resident does not clean their driveway, then there has been a Breach of Duty. On the other hand, if a resident worked hard to clean their driveway and someone still slipped there was not a breach of duty, because a reasonable person would feel that they completed their responsibilities.


Now that we have proved that a breach of duty occurred, it must be proven that that action or inaction caused an injury. This can be very straightforward as in the case of the driver that did not stop for a pedestrian in the crosswalk.

However, it can also be difficult to prove that the action/in-action was the cause of the injured party’s accident. In the slippery driveway example, what if the person that slipped had a previously sprained ankle that made it difficult for her to walk confidently?


If all of the above conditions have been satisfied, then damages must be assigned. This again can be very subjective or objective. It could simply include the medical expenses incurred. Even when no direct costs are incurred damages can still be awarded.

In addition to these four factors, many other factors may be involved in deciding a personal injury case. Because every personal injury case is under a time constraint, the most important factor in determining if you have a valid case is getting timely, well-informed legal advice from a personal injury lawyer.