Lesson 1 of 0
In Progress

6.4: Negligence


  • Learn legal English concerning the tort of negligence


  • Complete the readings on negligence
  • Answer the questions in the exercise

I. Negligence

The vast majority of tort claims in the United States are not based on intentional conduct by the defendant.  Most actions are based on negligence, where a plaintiff claims that a defendant, by acting carelessly, or failing to take reasonable precautions, injured the plaintiff.  

A negligence claim in the United States requires that the plaintiff prove that: defendant owed a duty of care to plaintiff; defendant breached that duty of care; and the breach caused plaintiff to be injured.

Watch the video on negligence:


A general rule in the United States is that individuals do not have a duty to keep everyone else safe from harm.  Instead, there must be a legal obligation  – – a duty of care- – owed by the defendant to the plaintiff. 

To determine whether the defendant owes the plaintiff a duty, courts frequently begin by asking whether a reasonable person would foresee that his actions – – or his failure to take certain precautions – – could injure another person.  Duty of care usually requires that a person act carefully enough to prevent a foreseeable accident from injuring others. 

But just because an injury is foreseeable, does not always mean that there will be a duty.  For example, let’s say a motorist views an injured person, possibly near death, by the side of the road.  Instead of helping, the motorist simply continues driving.  In most jurisdictions in the United States there would be no duty to assist even though it is foreseeable that the injured person could die.  Similarly, courts traditionally find that people do not owe a duty to avoid causing purely emotional harm to other persons.

Looking at our example in Unit 5.6, remember how the deliveryman placed a box in the middle of a busy sidewalk?  Patty could argue that the deliveryman should reasonably have anticipated that leaving a box in the middle of a sidewalk could injure someone.  We would probably agree that it is logical for a court to impose a duty on the deliveryman to not place boxes where they can trip people. 


How carefully must a defendant act – – that is, how do we know whether a defendant breached his duty of care?  

Tort law says people must act the way a reasonable person would act under the same circumstances.  We call this the “standard of care.” Defendants are held to the standard of care that a reasonable person would adopt.

For example, think about Debby running down the street with her hot cup of coffee.  Now imagine she spills the coffee on someone else.  We would likely say Debby breached her duty of care because a reasonable person would not run down a busy sidewalk holding a hot cup of coffee. 

Something that might get a little confusing is that we often use the “negligent” as a synonym for breaching one’s duty of care. But that does not mean that the defendant is liable for negligence. Sometimes when we say someone acted nelgigently, we just mean that they acted carelessly but that does not mean we have proven that they are liable for negligence.


David negligently left a banana peel on the stairs. Luckily someone found the peel and threw it out so no one got hury.

In the sample sentence above, David acted carelessly and breached his duty of care. But he is not liable for negligence, because no one was actually injured by his carelessness.


Once a plaintiff establishes that a defendant owed him a duty of care, and that the defendant failed to meet his standard of care, the plaintiff must next prove that the defendant’s actions or inactions caused his injury.  Courts in the United States require plaintiff to prove both “causation-in-fact” or “actual cause” and “proximate cause.”

  1. Actual Cause

Causation-in-fact, sometimes called actual cause or “but for” cause, means that the defendant’s careless conduct actually caused plaintiff’s injury.  For example, if a defendant leaves a banana peel on a public stairway and plaintiff trips over the banana peel and breaks his leg, defendant’s careless act was the actual cause of plaintiff’s injury.

Courts typically test whether the defendant’s carelessness was the actual cause of plaintiff’s injury by asking: “But for defendant’s conduct would the plaintiff have escaped injury?”   If the answer is “Yes” then the defendant was the actual cause of plaintiff’s injury.

2. Proximate Cause

Proximate cause is also called legal cause.  Legal cause asks whether it is fair to link defendant’s carelessness to plaintiff’s injury.   Sometimes, even though defendant’s conduct was an actual cause of the injury, the defendant should not be liable because the injury that occurred was too unforeseeable.   

Let’s say David is a waiter at a restaurant and he carelessly drops a sharp knife that he was tossing in the air.  A customer who happens to be an opera singer screams when she sees the knife fall.  She screams so loudly that a customer, Perry, chokes on his food. 

Here, a court would probably agree that David’s act of carelessly dropping the knife was causation-in-fact of the injury.  If David had not dropped the knife, the customer would not have gotten hurt.  So, yes, David was an actual cause of the injury – – but for David’s carelessness Perry would not have choked.

On the other hand, it seems unfair to hold David responsible for Perry choking.  The opera singer’s scream was an intervening event.  Also, the injury that we expect from a sharp knife is that someone will get jabbed, not that someone will choke. Under these circumstances, a court might cause conclude that David’s careless act did not proximately cause Perry’s injury.

Watch a video on proximate cause:

II. Exercise