Most people have a fleeting idea of what negligence is, even if they only gleaned it from television shows and movies. In reality, negligence is a relatively complicated facet of the law and most people have strong misconceptions about how it works.

Why is negligence so complicated, and what should the average person know about it?

The Basic Elements of Negligence

Broadly speaking, negligence is an action or failure of action that is misaligned with the reasonable care we expect people to exercise with respect to other people and their property. It's a huge category in tort law, encompassing everything from car accidents to medical malpractice and even premises liability. That said, negligence itself can be described in relatively simple terms, though those terms can spiral into complexity quite quickly.

According to the experts at Sherrod & Bernard, P.C., there are four primary elements of negligence:

  1.     Duty. First, to show negligence, you need to prove that there was the existence of a legal duty. This is a duty to take reasonable care with respect to others and their property, and it applies to most people in most situations. We expect ourselves and others to take actions that protect others against unreasonable risk of harm.
  2.     Breach. Second, it's important to prove that there was a breach of duty. In other words, it must be shown that the defendant took actions or omitted actions that ultimately show a failure to take reasonable care. This can be something like failing to warn others of a dangerous sidewalk condition or failing to keep your vehicle properly maintained when it ultimately leads to an accident.
  3.     Damages. Third, damages must be shown. This is primarily because most of us breach at least one duty every day; we all make mistakes and we all act recklessly on occasion. To bring a legal complaint forward, a defendant must show that actual harm resulted because of someone else's breach.
  4.     Causation. That brings us to the fourth element of negligence, causation. To succeed in recovering damages, a plaintiff must show a strong causational link between the breach of duty and the damages that resulted. The breach of duty must be an actual cause of the damages, with no intervening or superseding causes. It must also be a proximate cause of the damages, meaning the damage was reasonably foreseeable as a result of the defendant's conduct.

New law students are often confronted with the intricate complexities of negligence. Despite seeming simple on the surface, each of these elements is associated with multiple subrules and layers of nuance.

The Broad Umbrella of Negligence

Part of the reason negligence is so complicated is because it can potentially apply to so many things. Premises liability, medical malpractice, and car accidents don't seem to have much in common on the surface, but they all relate to negligence in some way. That said, you can't approach a car accident case the same way you would approach a slip and fall case, as each is radically different in terms of setting, expectations, and potential harm.

Rules and Exceptions

Negligence is also complicated because of all the different subrules and exceptions in play. For example, we generally have no duty to act when it comes to aiding or protecting third parties from the conduct of others or other dangerous circumstances; as an example, if you see someone drowning in a lake, you don't have a duty to try and save them. However, in certain special relationships, there may be a duty to prevent harm or render aid; for example, in some jurisdictions, therapists have a legal duty to warn third parties of potential violence if they have a patient who has specifically named them as an imminent target of violence.

These rules and exceptions get even more complicated when you consider that they vary by jurisdiction. There isn't one set of broad, universally applicable standards that all negligence lawyers in the country can use.

The Complication of Evidence

We also think of negligence as complicated because of the standards of evidence. It's not especially hard to show damages in the form of medical bills and destroyed property, nor is it difficult to prove actions that constitute breach of duty. But causation can be ridiculously complicated, especially when it comes to harms that emerge as a result of more than one factor.

There are certain tools and tests that can help, such as securing expert witness testimony, but even this can lead to a courtroom “battle of experts” and potentially unforeseeable results.

If you're not a lawyer or a legal expert, you don't have to worry about the many complications of negligence. Instead, you just have to acknowledge them and hire the best lawyer you can afford to represent you in your negligence case.