Elements of Negligence Claim or Cause of Action

Negligence is the legal claim or cause of action for most personal injury claims or lawsuits. Negligence is generally a breach of a duty or standard of care that one person or entity owes another.

Laws vary from state to state, but legally recognizable or compensable negligence claims generally require (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately (primarily) caused by the breach.

Duty

A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct. Every person has a duty to exercise reasonable care to avoid a foreseeable risk of injury to others. The existence of a duty is a question of law, and therefore is determined by the court (judge) and not the jury.

Liability for negligence is grounded in the public policy behind the law of negligence that dictates every person is responsible for injuries that are the reasonably foreseeable consequence of his act or omission.

But generally, one person is under no duty to control the conduct of another, even if he has the practical ability to exercise such control. An employer ordinarily will not be liable for torts committed by off-duty employees except when the torts were committed on the employer's premises or with the employer's chattels.

As a general rule, an employer owes no duty to protect the public from the wrongful acts of its off-duty employees that are committed off the work site. But under certain circumstances the employment relationship may impose limited duties on employers to control the activities of employees. Those situations have arisen when an employer affirmatively exercised control over its employee because of that employee's incapacity, and when an employer required its employee to consume alcohol to the point of intoxication while working.

And an employer has a duty to use ordinary care in providing a safe workplace. It must, for example, warn an employee of the hazards of employment and provide needed safety equipment or assistance. However, an employer is not an insurer of its employees' safety. It owes no duty to warn of hazards that are commonly known or already appreciated by the employee. It has no duty to provide equipment or assistance that is unnecessary to the job's safe performance.

And when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious.

Breach of the Duty: Standard of Care

Most people owe a duty of ordinary care to avoid a foreseeable risk of injury to others. For example, amusement ride operators are held to a standard of ordinary care. But the standard of care is different for some professional service providers, such as attorneys, whose standard of care is the objective exercise of professional judgment based on a reasonably prudent attorney.

And common carriers are held to a higher standard of care when transporting passengers. Common carriers include trains, airplanes, buses, taxis, street cars, and others in the business of carrying passengers and goods, who hold themselves out for hire by the public.

Some courts have defined that higher standard as that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances. This standard is based on the nature of the business of carriage (carrying passengers and goods).

The rationale for holding common carriers to a higher standard is that passengers should feel safe when traveling. Passengers entrust common carriers with their personal safety, have little if any opportunity to protect themselves from harm caused by a common carrier, and pay the carrier for safe transportation. The public has an important stake in having the public transportation of persons as safe as possible, and persons using ordinary transportation devices, such as elevators and buses, normally expect to be carried safely, securely, and without incident to their destination.

Proximate Cause

Proximate cause has two components: (1) foreseeability and (2) cause-in-fact. Foreseeability requires that a person of ordinary intelligence should have reasonably anticipated the danger created by a negligent act or omission.

Foreseeability is not measured by hindsight, but instead by what the actor knew or should have known at the time of the alleged negligence. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.

For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission—i.e., but for the act or omission—the harm would not have occurred. If the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. There may be more than one proximate cause of an occurrence.

A plaintiff proves foreseeability of the injury by establishing that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Conjecture, guess, and speculation are insufficient to prove cause in fact and foreseeability.

Although there can be more than one proximate cause of an injury, a new and independent, or superseding, cause may intervene between the original wrong and the final injury such that the injury is attributed to the new cause rather than the first and more remote cause. A new and independent cause thus destroys any causal connection between the defendant's negligence and the plaintiff's harm, precluding the plaintiff from establishing the defendant's negligence as a proximate cause.

In contrast, a concurring cause concurs with the continuing and co-operating original negligence in working the injury, leaving the causal connection between the defendant's negligence and the plaintiff's harm intact. Thus, the crucial distinction between a superseding cause and a concurring cause is the intervening cause's effect on the chain of causation.

In evaluating the existence of a superseding cause, the question is whether there was an unbroken connection between the defendant’s negligence and the plaintiff’s harm. In other words, would the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?

Defenses

Some state laws provide a number of defenses to negligence claims. For example, a plaintiff's appreciation of and voluntary exposure to a dangerous risk is something the jury can weigh when apportioning responsibility. And a participant in sports activity will generally not be held liable for ordinary negligence during his participation in a sports activity if the injury resulted from an inherent risk of that sports activity.

And sometimes an accident may be deemed unavoidable. Some courts have stated that sometimes accidents are no one's fault and an unavoidable accident instruction to the jury simply explains that they are not required to find someone at fault.

In Texas, a negligence claim requires establishing three elements: (1) a legal duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages that were proximately caused by the breach. A duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. Breaching this duty means the defendant failed to act as a reasonably prudent person would under similar circumstances. Proximate cause involves showing that the harm was a foreseeable result of the defendant's actions and that the defendant's actions were a substantial factor in causing the harm. Texas law also recognizes various defenses to negligence, such as contributory negligence, where the plaintiff's own negligence contributed to their harm, and assumption of risk, where the plaintiff knowingly exposed themselves to a dangerous situation. Additionally, certain relationships or circumstances, such as employer-employee interactions or common carrier obligations, may modify the standard of care or duty owed.