May 21, 2022

What Is Considered Negligence in a Personal Injury Case? 

Suffering through a personal injury can be a life-altering event. Your health can be affected as well as your relationships, ability to work and your financial life. If someone else was responsible for this catastrophic event in your life, you want that person to be held responsible. This was the purpose of personal injury lawsuits when negligence played a part in your injuries or in the injuries or death of a loved one. 

Following your injury, you may feel very strongly that you want the guilty party to be held accountable for the part they played in your injuries. However, you might also be feeling unsure as to where you should start this journey. There are many details and factors that must go into a personal injury case in order to be successful. This is why it is a good idea to seek the help and advice of a knowledgeable personal injury attorney. 

These professionals can help you navigate the often confusing waters of a personal injury lawsuit. They will be able to help you build a strong case in hopes of getting compensation for your injuries.

This guide was created to help you start to understand some of the terms and definitions used in a personal injury case as it relates to negligence. By doing a little research on your own in this way, you can start to feel more confident about the information you will need to deal with in your case. 

Negligence is often the reason personal injuries occur in the first place, so let’s take a deeper look at negligence. 

Negligence Defined

According to The Legal Institute of Cornell University, negligence is when one individual fails to provide a level of care or duty of care that would be expected and understood for the circumstances. By the nature of this definition, it can be assumed that the other parties involved understand the level of care that is being expected of them. When another party then chooses not to exercise this prudence and level of care, they are knowingly putting others in danger. 

For instance, an individual driving a car knows that they are expected by the law and the other members of their community not to drive while intoxicated. To then proceed to choose to drive while intoxicated is to ignore the level of care that is being expected of you by the law and your fellow community members. This makes the intoxicated driver guilty of negligence because they were aware of the level of care that was being expected of them when they got into the car. 

This definition of negligence can apply to many different types of people in many different types of roles. A personal injury attorney will be able to help you determine how the other party was guilty of negligence or if negligence will be a viable part of your case. When determining negligence, a legal professional will examine the elements of negligence. Keep reading to learn more about these elements of negligence. 

Duty of Care

When examining the duty of care, an attorney will help you review your relationship with the other party. It is important to determine if the other party owes you a legal obligation. Let’s go back to our example of the drunk driver. Did the drunk driver owe a legal obligation to other drivers on the road? Yes, they did. Each time someone gets behind the wheel of a vehicle, they put themselves under a legal obligation to follow all traffic laws. 

Even if you are not personally familiar with the other party, your attorney will help you establish this legal relationship. The truth is, as we interact with others on a daily basis, we are all operating within legal relationships. Even if we do not think about it consciously, we are constantly fulfilling our legal obligations to those around us. These obligations are called a “Duty of Care.” The duty of care obligation is greater for some individuals than it is for others. For instance, medical professionals have a much more serious duty of care obligation to people than other professionals. 

In order to build a strong personal injury case, though, you will need to know the specific laws which the other party has failed to uphold in connection with you. This is where an attorney can be very helpful. 

Breach of Duty

The second element of negligence that must be proven is “Breach of Duty.” Once the duty of care has been established legally, it is then necessary to establish that the duty of care was breached in some way that resulted in your injuries. This can be more difficult at times than establishing the first element of negligence. 

When establishing a breach of duty, it is necessary to have evidence. Evidence will need to be collected and verified in order to be used in court. Types of evidence that can be used to prove a breach of care might be police reports, medical records, emails, surveillance videos, and other types of evidence your attorney may find necessary. 

If you think that your injuries were the result of another person’s negligence, it is very important that you keep careful records of your experience and keep track of all medical records or police reports concerning the incident.


The third element of negligence that must be proven is causation. Causation will be the link that connects the breach of duty to your particular injuries. Proving causation can be a tricky step in a personal injury lawsuit, which is why it is very important that you have a strong legal team on your side. This is the step in the process in which the defendant’s legal team will attempt to prove that whatever happened was not the fault of their client. Your legal team will be responsible for proving that it was their fault. Most states recognize two types of causation. 

Cause In Fact: A cause in fact simply states that the plaintiff’s injuries would never have resulted but for the actions of the defendant. It is usually easy to prove if there were only two parties involved and no other extenuating circumstances. When there are other parties involved, or there are extenuating circumstances, it can get more complicated. A strong legal team will be able to create a body of evidence. However, that proves your case. 

Proximate Cause: Another type of causation would be the proximate cause. This means that the negligent actions of the defendant affected events that eventually led to your injuries. For instance, if you are struck by a car that was swerving to avoid a vehicle being driven by someone intoxicated, the intoxicated driver would be the proximate cause of your injuries, not the driver who was trying to get out of their way. The proximate cause can be more difficult to prove at times because the defendant will try to claim that they are not immediately responsible for your injuries. A good attorney will be able to build a case. However, on your behalf, that strongly proves the proximate cause. 


Proving that the defendant was at fault, however, is not all that will be involved in your personal injury case involving negligence. The last element of negligence is to prove that the defendant’s actions did result in damages. Damages are defined as legally recognized harm. Some people are confused by this term and think that “damages” means damage to personal property, but in fact, what it means is the financial value of the effect this event has had on your life. Damages are what are used to determine if you receive compensation and how much you will receive. 

Proving damages is a crucial part of your case. If you are able to prove the duty of care, the breach of duty, and the causation, it doesn’t really help you much unless your legal team has also carefully examined the damages that are owed to you. You want to be able to present to the court solid information concerning how this event affected you and how much that is worth financially. 

Most people do not pursue a personal injury case without the hope of being compensated. It is important that the guilty parties face justice for their actions, but it is also important that you receive financial compensation for the trauma you have suffered. The awarded damages can help a plaintiff build their life back after this event. 

Proving damages and calculating damages require many different skills. A legal professional will be able to take all of your documents and information and turn that into comprehensive information, which the court can use to get a clear picture of how much this event has cost you or will cost you even into the future. Let’s look at some examples of damages. 

  • Medical bills, both past and future
  • Lost income
  • Future lost income 
  • Property damage
  • Mental anguish
  • Wrongful death
  • Scarring or disfigurement 
  • Pain and suffering 

Although some of these categories seem vague, and you may wonder, “How do you place a price on pain and suffering,” rest assured that your legal team understands how these categories convert financially within the legal system. This is yet another reason why it is so important to have a legal team on your side rather than attempting to take on a personal injury case by yourself. 

Each category will require research and documentation, which must then be presented to the court according to a specific legal process. A good attorney will dig deep into all the ways you have been affected by your injuries and will then create a strong case that provides for sufficient damages. 

Understanding At-Fault and the No-Fault States 

Some states, such as Georgia, are considered to be at-fault states. This means that any person who is found to have breached their duty of care to someone else could be held accountable to compensate the other party for damages. 

At-fault judgments are sometimes applied in the instance of vehicle accidents in which the negligent driver’s insurance should pay for damages. You should be aware, though, that punitive damages are not usually awarded. Punitive damages are damages that are usually required if the defendant was guilty of serious negligence. 

No-fault states allow drivers to choose whether or not they would like to purchase a no-fault or an at-fault insurance policy. When drivers have at-fault policies in place, compensation is awarded much the same. 

Understanding Contributory Negligence 

Contributory negligence is proven by examining a driver’s actions or lack of actions that may have contributed to or caused an accident. This means that even if you, as the plaintiff, could be held responsible in some way for contributing to the accident, you could still be eligible to be compensated for the damages which were also caused by the other driver as well.

Not all states allow for the contributory model. Your attorney will be able to advise you on whether or not your case will be able to take advantage of this model or not. Often it must be proven that the plaintiff is found to be less than 50% at fault or contributing to the injury. Any damages you may be owed could be reduced depending on how much you contributed to the injury. It is easy to understand if you simply consider that if you were found to be 25% at fault for your injuries, then you may only receive 75% of the compensation that a court found owing to you. 

When both you and the defendant were somewhat at fault, personal injury cases can get very complicated. A well-trained, experienced attorney will know how to help you build a case despite the fact that they were in some way responsible for the accident that led to your injuries. Even if you were at fault somehow, it is important that others at fault are held accountable as well. The compensation you might be awarded can help you start to build back your life. 

Understanding Assumption of Risk

During a personal injury case that includes negligence, you may hear the term “assumption of risk.” Assumption of risk is a legal term that refers to the fact that a person may have had prior knowledge of the risk of injury and proceeded with their actions despite those risks. An assumption of risk argument might be used against you by the defendant. 

If you had been formally warned of the risks involved in a certain activity or action, and you proceeded with participation or exposure to that risk, the defendant’s legal team may try to prove that you are therefore no longer entitled to any compensation. Assumption of risks does not always apply, however, in every case. If you have a strong legal team on your side, you will be better equipped to deter such arguments should they pop up. 

Timing Is Important 

Many people who have suffered injuries due to negligence never see the compensation they deserve. One of the main reasons is simply because they did not use the time wisely following their injury. These types of lawsuits take time. If you hesitate to start the legal process, you begin to lose valuable time. The longer you wait to get started, the more difficult it can be to collect evidence, bring in the help of witnesses, and verify the information. There is also the problem with the statute of limitations in some situations. 

When a defendant moves quickly ahead with the necessary legal steps for a negligence lawsuit, there is more chance that you may be able to settle out of court. This means that your legal team will assemble most of the information needed to prove negligence and will present it to the defendant’s legal team. If their legal team advises their client to settle out of court, that means there is enough evidence against their client and the legal team knows that it would be wise and cost-effective to simply give you fair compensation without the cost and hassle of a lawsuit. However, if the defendant wants to fight the case, the case will need to go to court. 

Many states have a limit on the amount of time in which you can file a lawsuit following an event. Two years is the standard for many states. Because assembling the information for your case can take a great amount of time, it is imperative that you do not hesitate to contact an attorney with experience in personal injuries and negligence. 

You should know that if you are pursuing a case that involves a government agency, the timeline may be even shorter. Other instances in which the timeline would be shorter would be in cases in which the injured person is younger than 18. In those cases, the statute of limitations may be up when that person turns 18. This all means that you should contact a personal injury attorney as soon as possible following your accident. 

How To Increase Your Chances of Winning Your Case 

The biggest mistake people make following an accident is assuming they have no chance of winning their negligence case. So many people assume this and then let the time pass for timely filing. The truth is, if you truly were injured due to someone else’s negligence, you are very likely owed compensation. Here are some steps you can follow to get the ball rolling in your negligence case and increase your chances of winning. 

  • Start gathering evidence: You can start the day of your accident by gathering important evidence. Photos and videos were taken at the scene of the accident or shortly thereafter are often very valuable in court. Other evidence would include medical records, police reports, receipts for expenses you paid for medical expenses or damage, and income information that shows lost income. You should also collect contact information for anyone who might be considered a witness. 
  • Do not speak with the other party or their representatives: Often, in the emotional few days following an accident, a person is tempted to talk with the other parties involved. You should avoid this as much as possible. 
  • You should instead speak with an attorney as soon as possible so that you can proceed carefully and legally. You should also not speak with the other party’s insurance company. 

About the author 

Kyrie Mattos

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