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What Are The Elements of Negligence? Expert Lawyer Help!

What Are The Elements of Negligence?

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Date Modified: September 9, 2023

How do you prove your case to a court? Below, top Los Angeles negligence law attorney, Michael Ehline explains everything you must know. When a person acts carelessly and another person becomes harmed, the law calls this the tort of “negligence.”

Modernly, lawyers will bring a claim for the harmed victim under “personal injury law.” The claim is called a “Complaint for Damages.”

Under California law, the plaintiff (injured person) must prove four basic elements, which are:

  1. Duty
  2. Breach of duty
  3. Causation
  4. Damages.

IMPORTANT: Ehline Law Firm’s Los Angeles personal injury attorneys help personal injury victims, so this tutorial focuses more on negligence involving bodily harm instead of negligence causing property damage, for example. But the same principles apply.

Here, when a victim suffers emotional or personal harm, he or she can recover money damages for their loss in a settlement demand or lawsuit.

The winning side is the prevailing party. “Plaintiff” is the injured party.

  • To win, you, the plaintiff, must demonstrate that the defendant’s actions or lack of action legally caused recognizable harm.

Below we will break down the tort of negligence, define it, and discuss it for your benefit.

  • Of note, no visible physical injuries are required.
  • A bodily injury could include the emotional distress of a fraud or defamation claim, for example.
  • Even the expectation of harm from an assault is enough to bring on a PTSD claim.

So it’s not just tangible, obvious bruises, sprains, or cuts from bicycle or motorcycle accidents that harm us. Even emotional hardships can also form the basis of your compensatory damages amount.

After all, this likely was the basis of lost wages, medical bills, etc. You have a personal injury claim created under C.A. law, assuming this happened. So your legal injuries might include emotional, reputational, or economic injuries. Privacy, property, or constitutional rights violations can also be torts.

Torts may also encompass:

Modernly, environmental pollution cases (also known as toxic torts) are also torts. Of course, many torts are the result of negligence. But California tort law includes intentional torts as separate and distinct from negligent torts.

Intentional torts occur when a person intentionally acts in a way that harms another. Beyond this are the product and common carrier liability claims falling under “strict liability.”

Can There Be A Presumption Of Negligence?

Best injury attorney Michael Ehline looking tough!

Yes. There is a rebuttable presumption under negligence per se principles that the plaintiff was negligent. Damages are presumed as a matter of law in these instances.

  • What Are Some Differences Between Negligence Law and Criminal Law?

Tort law differs from criminal law because:

  • Torts include negligent and intentional or criminal actions with no jail time.
  • Tort lawsuits have a lower burden of proof. The lower preponderance of the evidence standard is used in a tort law case. (Read more about Preponderance of Evidence Here.)
  • The more difficult beyond a reasonable doubt standard is utilized in a criminal case.

EXAMPLE: There may still be criminal repercussions for a tort defendant who wins a tort case. A DUI hit and run case is a good example. There are crimes and torts here.

  • Criminal Penalty Distinguished from Civil Liability:

In a civil case, money and maybe injunctive relief if your general remedy. But a crime’s penalties can include:

  • Restitution
  • Time behind bars
  • MADD meetings
  • Probation
  • Caltrans trash pick-up, etc.

Also, a party can still win their civil personal injury case against a defendant who wins in criminal court. A recent example would be the O. J. Simpson case. At trial, O.J. was criminally acquitted of double murder. But he lost his wrongful death tort lawsuit. See how it is distinguished now?

How Do You Prove the Tort of Negligence?

Law school teaches that negligence is comprised of several elements. These include duty, breach of duty, actual cause, proximate cause, and damages. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594; Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59.)

But under Civil Code Section 1714, the actual cause and proximate cause are the same things. And this is called the “substantial factor” test.

  • Premises Liability Legal Standard Distinguished

Ordinary care is the duty to be proven in a case like this unless there is a waiver or some exception like the assumption of the risk. But here, even a criminal trespasser has legal standing to sue.

“Everyone is responsible, not only for the result of his or her willful acts but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civil Code Section 1714; See also CACI Section 400).

The elements for negligence are well-established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”‘ (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496].) Let’s break these elements down to help the adjuster, you, and the jury understand.

  • Legal Duty: A legal duty has to do with everyone’s responsibility as a citizen to act reasonably towards any potential plaintiff. Some people owe a special responsibility, and others owe a regular duty of care.

Examples of those owing a special duty are:

  • Common carriers
  • Doctors
  • Lawyers and licensed experts such as psychologists.

A motor vehicle operator of a passenger car owes a:

  • General duty: If a driver hires out with Uber or Lyft, they owe a special function. Making sense so far?
    • In a general duty situation, no personal relationship is required. So if a defendant accidentally discharges a gun and someone dies far away, the shooter remains liable for the death or injuries under ordinary negligence principles. There was no special duty unless, for example, your firearms instructor gave you inadequate training, and you shot yourself. When these factors are present, a special duty exists. Get it?
  • Breach of Duty: In California, when someone acts with “want of ordinary care,” a breach exists. If there is an injury, a breach of duty exists. Think about liquid on the floor of a grocery store’s vegetable and fruit aisle. Ordinary care would require a grocer to assume that the floor was wet. So if there were no reasonable inspections, someone would likely slip and fall. Are you getting this?

Substantial Factor Test (Actual and Proximate Cause):

Actual and proximate cause has been merged in modern courts. So modern courts ask, “was the conduct or failure to act a substantial factor plaintiff’s harm?”

Pretend an inattentive driver who veers into the bike lane and runs over a bicyclist caused an unsafe event. So clearly, it was a substantial factor in maiming or killing the cyclist.

  • Actual Damages – Damages, interestingly enough, can mean two things. First, it means harm. But most personal injury lawyers and courts also refer to the damages award as “damages.” So I am calling this “actual damages” so as not to blur the lines. Any emotional or physical harm/death is the actual damage. General damages include intangible losses like pain and suffering, not just a cut or broken bone.

When this is present, an adjuster, jury, or court may award compensatory damages to a plaintiff or the survivors of the negligent act. Money can’t solve what happened in the past. But there is no pound of flesh” available to personal injury victims these days.

Under English Common law, it was different. Now, it’s all about money. But a financial award helps the suffering person manage their bills and stay afloat as they heal up and achieve some improvement. And this includes the enormous impact of economic costs, like getting food on the table as people recover.

Last but not least, a damages award holds those responsible accountable for the life-changing consequences of sustaining the injury. So the case is over after payment.

  • Who is the Plaintiff?

The injured party is the plaintiff.

How Do You Distinguish Intentional Torts?

For example, intentional torts are when someone hits you or runs you over on purpose with a car. These torts completely differ and virtually act as the antonym of intentional torts. Intentional torts are distinguishable because the defendant knows and intends what he’s doing.

But sometimes, the person may have accidentally punched you due to sleepwalking or not being aware. So in this type of tort, the defendant might not have had any intentions of violating their duty. But negligence might still result. But lawyers must prove the following elements as evidence against the accused at trial.

Standard Of Care

The standard of care is the expectation from a party regarding the attention they must show to negligence liability. The defendant should act within these boundaries. That is what a healthy and sane person does in these circumstances. In normal circumstances, a prudent person would do how we judge the conduct.

Duty Of Care

This is the defendant’s duty to prevent unreasonable risks and harm to the plaintiff. The effect on the plaintiff, future prevention policy, suffering and injury of the plaintiff, and expected harm are considered. So it is the defendant’s conduct and its connection with the damage caused. Also looked at is the moral liability of the defendant.

Breach Of Duty

The existence of a breached standard of care means a duty existed. Also considered is what a reasonable person would have done in the same situation.

  • How unreasonable the defendant’s conduct was at the time of injury helps measure the forestalled or foreseen risks.
  • What happened? Also, what risks did the plaintiffs face?

Cause In Fact

The plaintiff needs to prove that the harm caused was due to the defendant’s conduct. So if no connection to the injury exists, no breach exists.

Proof of Breach

This is a method used to prove that the harm caused by the defendant’s conduct was against or in conflict with the established customs. And this is not that hard to determine if other elements are present.

Proximate Cause

When a remote injury exists, the defendant’s actions should foresee the damage. And this is called the “proximate cause.”

  • The main factor in question here is foreseeability.
  • The defendant remains liable for potentially foreseen harm at the time of the cognitive effects of the breach.


Even if all the above elements are present, there is no case unless there is measurable, viable harm to a victim. Losses become converted into monetary payments. So the idea here is to avoid jail or violent retribution. They must be foreseeable, inevitable, and unavoidable.

Negligence damages fall into several categories, as follows:

  1. Special damages are economic damages, such as medical bills, ambulance, or hospital bills.
  2. General Damages.
  3. Punitive or “Punishment” Damages.
  • Video Transcript - What Are The Elements of Negligence?

    Video Transcript - What Are The Elements of Negligence?

    "0:00 who can sue for wrongful death people

    0:03 who can sue for wrongful death under

    0:06 California law and many other

    0:07 jurisdictions include close family

    0:10 members such as fathers, sons and

    0:13 children sometimes siblings like sisters

    0:16 and brothers and also domestic partners

    0:19 under some state statutes. [music]"

Special Damages

Special damages are damages that can be objectively measured. These damages are usually calculated with certainty. Some examples include, out of pocket, lost wages, medical bills, etc.

Special damages also include damages for future nursing care and prescription drugs, to name a few. They also have property damage for a total loss of a vehicle and lost past wages, and lost future wages. And they will have past, present, and future lost wages.

General Damages

General damages include money damages for physical and mental pain and suffering. General damages traditionally cannot be calculated with certainty. Pain and suffering, emotional distress or NON-economic losses are examples of general damages.

Parties usually assert that the parties seek a recovery for a loss that is not specialized in any manner and that the party has been wronged for of a general sum. Usually general damages only seek recovery to the extent that the court will allow.

Punitive Damages

Punitive damages are sometimes available for reckless and intentional conduct to punish the evil-doer. Damages must be reasonable and necessary.

Other Damages Issues

  • Mitigation of Damages

A car accident victim cannot be unreasonable and mustn’t overtreat and cause more medical bills. But this remains a hotly contested issue in soft tissue cases. And this is because an injury victim suffers primarily personal injuries.

Even though soft tissue cases can be significant, they may not be seen as objective injuries. So they won’t be seen in an MRI, cat scan, or x-ray.

Above, we discussed the tort of negligence when a party has to act according to his duty of care. But then they violate the obligation by either doing an action or not doing one. We also broke down the elements for a layperson to understand.

The good news for those suffering is that there is a legislative scheme in place to protect people harmed from negligence. California’s negligence law enables people to garner compensatory damages for the losses stated above. If you have more questions, call us at (213) 596-9642.

Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
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Michael Ehline

Top Injury lawyer, Michael Ehline, Esq.
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