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Explaining Negligence Tort: What Is a ‘Tort of Negligence’?

Video Transcript

“0:00 What is it tort of negligence? The tort
0:03 of negligence is simply a breach of a
0:07 duty by a wrongdoer of a reasonable
0:10 standard of care which is recognized by
0:12 society as a whole as being reasonable.
0:14 It’s called the reasonable person
0:16 standard. If that conduct is breached and
0:19 caused somebody damages then those
0:22 people who were damaged can simply go to
0:25 court and seek a damages remedy to be
0:28 compensated for the harm that occurred
0:30 to them..”

The “Tort of Negligence” is simply a breach of the duty by a wrong-doer of a reasonable standard of care which is recognized by society, as a whole, as being reasonable. It is called the “Reasonable Person Standard”. If that conduct is breached and causes somebody damages, those people who were damaged can simply go to court and seek a “Damages Remedy” to be compensated for the harm that occurred to them.

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A tort is a civil wrong where the courts impose liability on the people committing the wrongful acts. In the context of a tort, an injury is legal rights invasion, while harm is the losses suffered by an individual.

Tort law aims to provide relief to an injured party for the injuries or harm suffered. The state statutory law defines the boundaries of tort law, and the judges interpret the statute in determining what actions constitute a civil wrong, which defenses may override a claim, and how to determine damages.

There are three types of tort, intentional torts, negligence torts, and strict liability torts. Let’s explore the tort of negligence with Ehline Law and our personal injury attorneys.

What Is a Tort of Negligence?

The tort of negligence is a law that provides a remedy to a person who suffers injuries due to another person’s negligence, recklessness, or carelessness. The main concept of negligent torts is that people should exercise reasonable care in their actions, especially if they foresee any harm that may occur to others or their property.

Under tort law, anyone suffering injuries due to another’s negligence or wrongful act can sue the responsible party for the damages incurred, including physical injury, property damage, emotional injuries, or economic and non-economic losses.

What Are the Elements of a Negligence Claim?

When an injured person wants to sue another party, they must establish the critical elements of a negligence claim, which includes the following:

  • Legal duty
  • Breach
  • Causation
  • Damages.

Some states narrow these four elements of negligence down to three or expand it to five.

Duty of Care

Whether you’re driving, own a supermarket, or have a pet dog, you have a duty to ensure reasonable care to prevent harm to others. There are laws that everyone must follow, and failure to follow the laws can lead to legal liability.

The origins of duty of care in a negligence claim can be traced back to Donoghue v. Stevenson, a case where a woman was drinking a ginger float beer purchased by her friend at a cafe. As she poured the beer into a glass, she saw the remains of a decomposed snail resulting in a mental shock and gastro-enteritis. Donoghue sued the manufacturer, Stevenson.

The case moved to the House of Lords where Lord Atkin’s neighbor principle, individuals must take reasonable care to prevent injuries to others from their actions, later setting a precedent for duty of care in Caparo Industries Plc v. Dickman.

Breach of Duty of Care

The second element in the tort law of negligence is the breach of duty of care. Once the plaintiff establishes the duty of care, they must establish that the defendant failed to exercise reasonable care.

Under the law, the plaintiff must prove that a reasonable person would act with more care than the defendant did, and therefore the defendant breached their duty of care toward the plaintiff.

For example, if you have a duty of care to others by driving within a certain speed limit, crossing that speed limit would be a breach of that duty of care.

A judge or a jury would find the defendant negligent if a reasonable person:

  • Knew what the defendant knew
  • Would know that the actions would lead to injuries to others
  • Would take action different from what the defendant did.


Causation is the relationship between an action and the outcome, and under tort law, the plaintiff must establish that relationship through evidence. There are two types of causation, actual and proximate cause.

The actual cause is injuries that occur directly due to the negligence of another person, while the proximate cause is the legal cause of an injury, meaning it is a cause that produced a foreseeable reaction resulting in harm to another person. Here, we will discuss the “actual cause.”

Although it may sound simple, proving a relationship between one’s actions and the results can be challenging. To establish a factual link, the tort law uses the “but for” test, which essentially means that, but for the defendant’s actions, would the harm have occurred?

The case Cork v Kirby MacLean Ltd gave rise to the modern description of the “but for” test. In the Cork v Kirby MacLean Ltd case, a factory worker died after having an epileptic seizure and falling from a platform without railings 20 feet above the ground. The factory worker’s spouse sued the factory owner.

There was clear evidence of the duty of care and the breach of that duty. However, the factory owner argued that the worker did not die due to the absence of railing but from an epileptic seizure. The case gave rise to causation, and the court stated that if the factory owner had installed railings, the worker would’ve not fallen to the ground while having the seizure, resulting in his death.

In the case of Barnett v Chelsea and Kensington Management Committee, a claimant rushed to a hospital to see a doctor for his stomach pain, and the defendant sent the claimant home and said to call his GP in the morning. However, the claimant died after five hours from arsenic poisoning. According to the “but for” test, the defendant could not do anything to prevent the death; hence, there was no causation.


Even if the plaintiff establishes that the defendant owed them a duty of care, breached that duty, and found causation, they cannot recover compensation unless they prove that the defendant’s breach caused their injuries.

In cases where there are no damages but a violation of legal rights, the plaintiff does not need to prove the injuries, and the court can award them nominal damages. However, in cases with injuries, the plaintiff must prove that the injuries they suffered are because of the defendant’s negligence.

Injured victims must calculate the value of damages arising from the defendant’s negligent act. When the plaintiff establishes all the other elements of negligence tort claims, the only thing left is compensating the victim.

The nature of the damages is compensatory damages, and these include special damages and general damages.

Special damages are quantifiable direct losses arising from the defendant’s negligent conduct, including medical bills, lost wages, and property damages.

On the other hand, general damages are non-quantifiable losses awarded to the plaintiff for their psychological and mental harm from an incident. Some examples of general damages include emotional distress, physical pain and suffering, disfigurement, and reduced quality of life.

The court may also award punitive damages in personal injury cases where the defendant breaches their duty of care in a grossly negligent manner. These damages are not to compensate the injured party but to punish the defendant and deter others from committing similar acts.

In legal doctrine and philosophical accounts, the relationship between punitive damages and the nature of tort law remains controversial.

Is There a Difference Between Criminal Negligence and Civil Negligence?

Under criminal law, the definition of criminal negligence is when a person acts in such an extreme way that deviates from what a reasonable person would do in such a situation. 

The difference between civil and criminal negligence is that in civil negligence, the defendant’s actions may not deviate radically from how a reasonable person would’ve responded.

In civil negligence cases, the burden of proof on the plaintiff is much lower than the burden of proof on the prosecutor in a criminal negligence case. The plaintiff must prove that the defendant was most likely negligent in civil cases, while in criminal cases, the prosecutor must prove that the defendant is beyond a reasonable doubt guilty.

Legal Defenses Available to the Defendants Against Injured Parties

Some defenses available to the defendant will reduce the damages awarded, while others will dispel liability.

Here are some of the defenses a defendant may use in a negligence claim against them:

  • Contributory negligence: In contributory negligence, the defendant provides evidence that the claimant is partially responsible for the accident. If successful, the defense completely bars a plaintiff from making a recovery.
  • Comparative negligence: Most states have adopted comparative negligence that reduces the plaintiff’s recovery by the percentage of their fault in their injuries or damages. Some states bar the plaintiff from recovery if they share the same degree of fault as the defendant or more.
  • Voluntary assumption of risk: When a person willingly engages in a risky activity, and they are aware and have knowledge of the risks, they cannot sue the defendant if any injuries occur to them. Examples of voluntary assumption of risk include contact sports and skydiving.
  • Motion to dismiss: When a case does not have any legal claim or lacks jurisdiction, a defendant may ask the court to dismiss the case.
  • Motion to quash: A plaintiff must serve the defendant with the complaint and the summons by following the legal procedure. The court cannot continue with a case without the plaintiff following the proper legal process. A defendant may ask the court to nullify the service of summons if the plaintiff hasn’t followed the proper process.
  • Motion to strike: A defendant can ask the court to remove any evidence that may be scandalous or obtained illegally.

There are many defenses under negligent torts that a defendant may use, and an experienced attorney would be better able to guide the defendant on what defense would be appropriate for their case.

Schedule a Free Consultation with Ehline Law

If you suffered injuries in an accident that was not your fault, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation.

Our experienced personal injury attorney will help assess the case, gather evidence to build a strong case, and pursue the at-fault party’s insurance company to obtain the compensation you deserve.

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