The 5 elements to proving negligence and how to do so
Negligence, liability, and fault are the basis of all tort law.
Each state treats these concepts slightly differently, but the general notion is the same. Below we’ll define these and other legal terms and discuss how they’re handled in California courts.
Legal definitions
Tort: A tort is any wrongful act or omission that can lead to civil (not criminal) responsibility because it injured a person or entity. Broadly defined, an “injury” could be physical, non-physical (for example, emotional), or financial.
Personal injury: A personal injury could be literal, like injuries you suffered in a car accident. It can also be harm to reputation, as in slander or libel. It can be related to financial loss, like loss of property, loss of earning capacity, loss of a business or livelihood, or a property or contract dispute. In essence, personal injury law covers a broad range of losses or any action that harms you. A personal injury is usually handled in civil courts, but there are limited circumstances when it’s also a crime.
Legal liability: At its core, “liability” simply refers to whether someone had an obligation or responsibility to do or not do something that caused harm.
In short, a tort is the defendant’s action. An injury is what happened to you as a result of that action. The legal question is whether the event was an unavoidable accident, or if the defendant was liable for your injury.
Legal standards for reasonableness and foreseeability
If an injury is “foreseeable,” it means it could have reasonably been predicted by a regular person. No two people are exactly alike, of course, and we each have our own standard for what’s dangerous. That’s what makes foreseeability and reasonableness complicated for courts to sort out.
Here’s an example (if you’re a parent, you’ll be able to relate):
Carol watches nervously as her 5-year-old attempts to climb the same tree. She lets her go about 6 feet high and then says she should come down because she’s afraid the child will fall and she wants to be able to catch her if that happens. To Carol, it’s not reasonable to let a 5-year-old climb higher than 6 feet in a tree because she thinks it’s too dangerous.
Is there a right or wrong here?
The question is whether it’s reasonable that a 5-year-old can safely climb a large tree and if it’s foreseeable that she could fall and get hurt by doing so. But what’s reasonable to one person is unreasonable to another, and often there’s no clear right or wrong.
The reasonable person standard is used to compare a defendant’s actions to those of a person of ordinary intelligence who uses average care, skill, and judgment. The court will decide whether the injury would be foreseeable to a reasonable person.
If the defendant should have foreseen the possibility of harm based on the reasonable person standard, then they can be found liable if their actions caused the injury.
This is why the facts of a case and the evidence that proves them is crucial. The judge or jury will need to evaluate each fact and determine if the defendant’s actions were reasonable and the injury foreseeable in order to establish negligence.
California negligence laws
“Negligence” is an action or failure to act by a defendant who owes a duty of care to a plaintiff.
A person’s duty of care depends on the relationship between the individuals involved. But under this definition, a “relationship” can exist between two people who don’t even know each other.
Here are examples of different types of individuals and their duty of care:
| Child care provider | Has a duty to keep children safe and healthy in their care. |
| Store owner | Has a duty to keep premises clean and in good condition so that there are no tripping hazards or other dangerous situations that could cause injury to shoppers. |
| Employer | Has a duty to provide a safe and hazard-free work environment for all employees. |
| Jogger | Has a duty to other pedestrians and drivers to pay reasonable attention to where they’re going and to avoid collisions. |
| Doctor | Has a duty to patients to use a reasonably accepted standard of care to diagnose and treat illnesses. |
| Product manufacturer | Has a duty to sell products that are free from defects that would cause injury to users. |
| Driver | Has a duty to take reasonable care while on the road. That means being mindful of other traffic and pedestrians who share the road, and taking precautions to prevent crashes. |
In some of these circumstances, there’s an established relationship like doctor/patient or employer/employee. But in many cases, there wasn’t an existing relationship before the injury occurred. A relationship is created based on the duty of care to the other person or people around you.
This relationship is crucial to proving negligence in a personal injury lawsuit.
California sets forth 5 elements that must be present to prove negligence:
- The defendant had a duty to either act or not act in a specific way.
- The defendant breached their duty.
- Breach of that duty was the cause of the plaintiff’s injury.
- The defendant should have foreseen the likelihood that someone would be harmed by their action or inaction.
- The injury resulted in actual damages (cost of medical treatment, lost wages, pain and suffering, etc.).
Here are 2 previous California cases to gain a better understanding of negligence law:
| Ortega v. Kmart Corporation |
|---|
| Richard Ortega was shopping at a Kmart store in Torrance, California when he slipped on a puddle of milk on the floor near the refrigerators. The fall resulted in significant knee ligament injuries.
Ortega’s main argument was that Kmar was negligent because its employees should’ve discovered the puddle on the floor and cleaned it up before he slipped. California law says that a store owner isn’t responsible for maintaining the safety of its shoppers, but it does have a duty to exercise reasonable care to keep the premises reasonably safe. That includes regular inspection of the premises and the amount of care required for the risks involved. The manager of the Kmart might not have been able to prevent the spilled milk, but the key to this case was whether the store was negligent in not knowing that it was on the floor. The main question was how long the milk was on the floor and if that amount of time was enough that an employee should have reasonably been aware of it in time to clean it. Witnesses testified that no Kmart employee had inspected the area within the 15-30 minutes prior to Mr. Ortega’s fall, and that the milk could’ve been on the floor as long as 2 hours. The court concluded that the site hadn’t been inspected in a reasonable amount of time so that a person using due care would’ve discovered and corrected the hazard. The plaintiff was awarded $47,000 in this case. |
| Schwartz v. Helms Bakery Limited |
|---|
| The plaintiff in this case was a 4-year-old boy, Scott Schwartz, who was hit by a car while crossing the street. Scott was crossing the street to buy a doughnut from a retail bakery truck operated by the defendant, Helms Bakery.
The little boy had approached the bakery truck a few minutes before the accident and asked the driver to wait for him because he had to go home and get some extra money to buy a doughnut. The driver knew that the boy lived down the street, so he said he’d meet him closer to his house. The driver stopped twice to sell doughnuts before he arrived near Scott’s house. After a few minutes, the driver believed Scott wasn’t coming back and so stopped looking for him. But then, Scott shouted “Hey, wait!” from across the street and ran from behind a parked car and into the path of another vehicle, which is when he was hit. Scott’s parents filed a lawsuit for Scott’s injuries against the operator of the bakery truck, claiming that it didn’t exercise due care for Scott’s safety. This case relies on previous cases before the California courts, which determined:
The court said that the driver created a duty of care relationship to Scott when he said he’d meet him closer to his house. The driver also had a duty of care as a business because he had arranged to meet him near his house, which invited the little boy to be a customer. The driver was also obligated to use greater caution with Scott than with an adult because there’s a higher duty of care when dealing with children. Finally, it was foreseeable that a 4-year-old would be careless when crossing the street. |
California comparative fault law
Not all cases are one-sided. A plaintiff can bear some responsibility for their own injury. Perhaps the defendant didn’t exercise reasonable care, but if the plaintiff could have avoided injury, that affects the amount of damages they can recover.
Here’s an example:
Two cars are involved in a head-on collision. Driver A was headed south on a 2-lane road with a double-yellow line. He heard his phone buzz and reached over to grab it and glance at a text. As he did so, he swerved over the double-yellow line and into Driver B’s lane, causing the collision. Driver B, heading in the opposite direction, saw Driver A begin to swerve. If Driver B had acted a moment faster to get out of the way, it’s possible that the collision would’ve been avoided. But she didn’t react quickly enough and the two cars collided.
Driver A was definitely at fault because he was engaged in distracted driving by looking at his phone while behind the wheel. But even though Driver B didn’t cause the collision, she also had a duty to act quickly as a defensive driver to prevent it.
California follows a comparative fault system. In the example above, this means Driver B might only be able to recover a portion of the damages because they’re considered partially responsible for the crash.
This hasn’t always been the standard in California. Prior to 1975, California was a contributory negligence state, so a plaintiff wouldn’t recover any damages if they had any responsibility for the injury. There are only a few states that still follow this model.
Today, a California plaintiff can recover any portion of damages caused by the defendant.
So in the example above, the court might determine that Driver A was 90% at fault and Driver B was 10% at fault. If the total damages were $100,000, the compensation amount would be reduced by 10% (the percentage Driver B is responsible). Driver B would recover $90,000.
What to do if someone’s negligence caused your injury
If you’ve been injured, consulting a personal injury lawyer is your best first step to recovering damages. The burden of proof is on the plaintiff in a civil injury lawsuit. You’ll need to prove the defendant’s negligence by showing that your evidence is more compelling than theirs to establish each of the elements listed above.
Consider using the Enjuris Personal Injury Law Firm Directory to find an experienced California personal injury lawyer to gather experts and evidence to prove your claim and recover damages.
See our guide Choosing a personal injury attorney.