What Are the Elements of Negligence? Is a Defendant Always Liable When They Are Present?

LAW BLOG  •

July 30, 2015

A case relying on negligence to determine worthiness of compensation can be tricky, but there are guidelines that can help you figure out if your particular case is one that qualifies for recompense on the part of the negligent party.

Elements of Negligence

There are five basic elements of negligence that must all be established before liability can be determined. These elements are as follows:

  • Generally determined by a judge, there can only be negligence if the defendant owes some sort of duty to the plaintiff. This type of duty occurs when a relationship between them is established in which the defendant has legal obligations to perform in a particular way with regard to the plaintiff. For example, if a lifeguard is on duty at a swimming pool, he or she must have established a relationship with those swimming that denotes a responsibility on his part.
  • Breach of duty. Returning to the example with the lifeguard, if a swimmer is injured and the injury is neglected during the course of his or her time at the pool, the lifeguard could be held responsible for issues resulting from that neglect. This would fall under the element of “breach of duty” and is generally determined by a jury at trial.
  • Cause in fact. For the lifeguard to be truly negligent, cause in fact would also need to be established. This means the injuries or losses that occurred actually were brought on by the negligent actions of the defendant. If someone slipped poolside and hit his or her head, for instance, the lifeguard would likely not be the cause of that action; however, if the lifeguard failed to respond to the issue, resulting in further injuries, then cause in fact could be established.
  • Proximate cause. This element relates to the extent to which the defendant could have foreseen the negative repercussions of the actions to the In the lifeguard example, a head injury causing a fall into the pool would be easily established by the lifeguard as a situation which, if action were not taken, would cause harm. Therefore, failing to act in those circumstances would establish proximate cause. However, if the slip caused an injury that could not be physically seen or reasonably predicted, it would be more difficult to establish the lifeguard’s liability.
  • To be compensated for damages, there must have been damage done. If there is no physical injury, damage of property, or other sort of harm, it will be difficult to determine how to compensate the plaintiff. Therefore, simply observing that someone failed to exercise reasonable care without it having an impact on a person or property would not be enough to bring a case against a party for negligence.

Liability and Presence

Many may wonder if simply being present for negligence could leave them open to liability. The answer is both yes and no and depends entirely on the case. If you are present and have met the above criteria, with duty firmly established and that duty breached, then yes, your presence may allow charges to be brought against you. A store owner who is inside of his shop but fails to clean up a spill is likely going to be responsible for resulting injuries; however, bearing witness to negligence to a party for whom you have no duty will likely leave you free from punitive action.

How an Attorney Can Help

Clearly, the issue of negligence is anything but cut and dry. If you are in a situation you believe may put you at risk for liability or are looking to be compensated for damages, contact one of our personal injury attorneys. We are here to answer your questions and act as your advocate during whatever proceedings may come.

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