Copyright 2019 Orin Cohen Law.
All Rights Reserved.

24 Hours 7 Days

We Are Always Reachable Direct By Phone


Call Us Today For a Free Consultation




What is Negligence?

What is Negligence?

One can only bring a lawsuit for negligence if they can establish all four of the required elements. If any one of the elements is missing, then there is no negligence from a legal standpoint, and a lawsuit cannot be sustained. Of course, there are often defenses and other technicalities involved with proving such a case, so it is always best to contact a qualified, licensed attorney to help answer your questions and guide you through the process of analyzing your claim or defense to negligence.
Attorneys are infamous for using “legalese,” or terms that have a special meaning in the legal world that might not be immediately obvious. If you have been harmed by someone else, you may have heard that someone acted “negligently.” But what does that mean in a legal sense?

Dictionary.com defines “negligence” as:

[T]he failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care.

That gets us part of the way to understanding this concept, but it is still a little confusing. How do you know if there was negligence in your case? What are the elements of negligence?

Most states in the US follow a legal tradition called “Common law.” Common law relates back to traditions that came into existence in England even before the United States was a colony. Through centuries of legal thought and precedent, certain legal principles have evolved that we are bound by today even though, in many instances, these laws have never been written in a formal statute. Since common law legal principles are inherited from a common source, they tend to be very similar from state to state, but every jurisdiction may have subtle variations. Nevertheless, the elements of negligence are generally:

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


A duty is a legal obligation owed by an individual or company requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. For example, we generally owe one another an obligation not to drive our car into the back of another person’s car, not to shoot off fireworks in crowds of people, and not to set fires where they might set a neighbor’s roof ablaze. There are many duties in the world, and they can arise either as a result of common law principles or by written statutes or codes.


A breach is simply a violation of a duty. It is literally when one does not do what they are supposed to do pursuant to that duty of care. So, when someone does run into the back of another car, does set off fireworks in a crowd, or does accidentally catch their neighbor’s house on fire, they are said to have breached their duty of care.


It is not enough that one do something which could harm someone else, it has to actually cause harm. Causation is the link between the breach and the injury. For example, if someone sets off fireworks in a crowd and nobody is injured, there is no causation because there is no link between the act and an injury. Similarly, if someone in that crowd gets in a car accident on the way home, they will be hard-pressed to explain how the car accident was caused by the fireworks in the crowd, so there will likely not be any causation. But, if the fireworks go off and someone gets burned, trampled by other people in the crowd fleeing from the fireworks, or suffers hearing loss from being so close to the explosions, then those people may be able to establish the element of causation.


Just as one needs causation, they also need to establish an actual harm resulted from the breach of duty. Just being upset that someone did something that could have caused harm is usually not enough. Generally, one must have suffered an actual injury of some sort. Again, returning to the fireworks in a crowd, if someone is startled by the fireworks and mad at the person who did something so reckless, but otherwise suffers no harm, that person has no damages. On the other hand, if someone is burned by the fireworks, that person will likely have medical bills and pain and suffering, and these would be different forms of damages.

By [HG.org]