A person, or company, has acted negligently when it engages in conduct that falls below the standard established by law for the protection of other individuals against unreasonable risk of harm. Proof of a theory of negligence requires a plaintiff to show four things: the existence of a duty, the breach of that duty, and that such breach is the cause in fact and proximate cause of the damages suffered by the plaintiff.

Duty. Typically, the standard of care established by law is that of a reasonably prudent person of similar knowledge and experience to the defendant. However, it is important to note that in some situations, a person, or company, may be charged with a higher standard of care if they engage in an activity requiring special skills, education, training or experience – such as piloting a plane. The existence of a duty may also depend on factors such as the relationship between the plaintiff and the defendant

Breach. The plaintiff must not only show that the defendant owed a duty, but also that the defendant breached the duty that was owed.

Causation. Plaintiff must show that defendant’s breach was both the cause in-fact and proximate cause of the harm suffered by the plaintiff. Cause in-fact simply means that the harm would not have occurred but-for (or without) the defendant’s breach. Proximate cause, however, is an issue that frequently causes much confusion. The concept of proximate cause limits the defendant’s liability to consequences that are reasonably related to the defendant’s conduct. In making this decision, courts will often rely on principles of foreseeability. This may include asking whether the result is the “direct result” or “natural or probable” consequence of the negligence.

Damages. Naturally, a plaintiff must suffer damages in order to have a cause of action on a theory of Negligence.

Intervening Causes

Further complicating the issue of causation is intervening (also called superseding) causes. An intervening cause is an act that occurs after the initial tortfeasor’s act of negligence and caused injury or harm to the plaintiff. An example might be the malpractice of a doctor after a negligently caused car accident. Intervening causes are divided up into the categories of dependent intervening causes and independent intervening causes.

Dependent Intervening Causes. A dependent intervening cause is one set into motion by the defendant’s own hand. This type of intervening cause will not absolve the defendant of liability unless it is “extraordinary”.

Independent Intervening Causes. An independent intervening cause is a cause that arises through no fault of the defendant. This type of intervening cause will relieve the defendant of liability unless it was foreseeable by the defendant.

Res ipsa loquitur

Res ipsa loquitur is latin for “the thing speaks for itself.” Like any other law, the application of res ipsa loquitur varies by jurisdiction. However, generally speaking, an argument for res ipsa loquitur may exist in a situation where the defendant has exclusive control (or nearly exclusive) of some aspect which can be said to have been handled negligently simply by the fact that some event occurs. The purpose is to allow the plaintiff an opportunity for recovery where it may be impossible to otherwise prove all elements of negligence.


Our Role

At RWFE, we have helped clients with every aspect of negligence claims imaginable. Negligence occurs when a person fails to act as a reasonably prudent person would in the same or similar situation. However, in some instances, persons with specialized training or knowledge can be held to a higher standard. Such may be the case when an engineer or person acting as an engineer designs a product for consumer use. In this instance, an engineer may be needed to help establish the standard of care, which may be based on published industry standards, best practices, or simply concepts of safety taught to engineers in college curriculum. Once the standard of care is established, an engineer will be able to demonstrate how the standard was breached, possibly through testing or theoretical analysis, and how this breach ultimately caused the plaintiff’s injuries. While in some cases, such as physical injury, damage may be obvious, engineers may also be required to assess the extent of damage to property or structures and estimate the costs of repair.

Negligence claims are frequently brought simultaneously with strict liability and warranty claims. If you need help determining weather you have a claim for negligence or distinguishing between the different causes of action that you might be able to pursue, please feel free to contact us at 806.368.9811.