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What is Negligence in Personal Injury Law? 


In broad terms, negligence is the failure to take proper care in doing something, causing someone else to be hurt. However, the legal definition is much more precise. It’s not enough to just act in a way that causes harm; instead, four criteria must be met for negligence to be determined. 

Legal Definition of Negligence 

The following elements must be established in order to prove negligence: 

  • Duty of care 
  • Breach of duty of care 
  • Causation 
  • Actual harm. 

Although these criteria are required, proving them is not always cut and dried. A judge or jury needs to weigh out all the factors to determine if the action is actually negligent. 

Let’s look at these one by one by considering a situation where a customer slipped and fell in a store after the store mopped the floor and did not dry it or warn customers that it was wet. 

Duty of Care 

A person has a duty to others to act in a way that will not harm them. We generally have a duty to use reasonable care to avoid causing harm to others. 

However, the duty of care generally doesn’t extend to preventing injury that we were not the cause of. Continuing with our example, someone who witnessed the accident, but was not connected to it, does not have a duty of care to the person who slipped. 

Breach of Duty of Care 

It’s not enough just to prove that a duty of care exists. That duty of care must have been breached. In order to determine this, it must be considered how a “reasonable person” would act in a similar situation. If the store in our example left the floor wet for an hour without warning people, care.a jury might conclude that the store did not use reasonable care and was therefore negligent. 

However, if the store property marked the area as having been mopped, and placed an employee near the wet floor to warn people passing by, they probably have not violated their duty of care, because they have taken prudent steps to insure that customers know about the danger. 


Breach of a duty of care is not enough for negligence. A plaintiff must show that the defendant’s breach of duty was the cause of the plaintiff’s injury. 

Actual Harm 

It’s not enough that someone might have been hurt due to a situation. They need to actually be hurt. Looking at our spill example, a customer who walked over an unmarked wet floor but was not injured in any way does not have the grounds for a negligence claim. 

If they had slipped and injured themselves, that would be actual harm. Potential harm is not enough to meet this standard. Actual harm does not necessarily mean physical harm, though. It can also apply to mental, emotional, or psychological harm. 

Types of Negligence 

Negligence generally falls into one of four categories: 

  • Gross Negligence. Gross negligence is a heightened degree of negligence. It refers to actions that are reckless of the potential consequences. Someone driving under the influence of drugs or alcohol may be liable for gross negligence. The risks of driving while intoxicated are well-known. If someone chooses to do it anyway, they are knowingly putting other people at risk of injury. 
  • Contributory Negligence. Accidents and injuries are not always the fault of only one party. In some states, the person who was injured can be held partially responsible for their injury. In states that use a contributory negligence standard, any injured person who was even 1% responsible for the accident is not able to recover any damages. For example, if someone was texting and not watching their surroundings and slipped on a wet floor, the court might determine that the injured person contributed to the accident and therefore could not recover any damages. 
  • Comparative Negligence. Comparative negligence is similar to contributory negligence in the sense that they both take into account the fact that the injured person might bear some responsibility for the accident. However, comparative negligence looks at how much each party was responsible and takes that into account. In the above example of slipping while texting, the court might determine that the injured person was 20% responsible for the accident. In that case, they would still be eligible for 80% of their damages in the case. 
  • Vicarious Negligence. Vicarious negligence occurs when a party is held responsible for the negligent actions of someone else. This often arises when an employee causes injury to someone else. If that employee was on the job, their employer may also be on the hook for vicarious negligence. 

Next Steps if You Are Injured Due to Negligence 

Negligence can be a tricky topic to understand and to prove. If you’ve been injured due to someone else’s negligence, you need a qualified personal injury attorney to help you get the most from your case. Here at DiPasquale Moore, we’ve helped our clients recover millions of dollars in damages. 

We work on a contingency basis, so you only pay if we win your case. Contact us today for a free initial consultation and see how we can assist you. 


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