What is Negligence:

“Negligence” is a common law term that refers to a theory of liability in civil cases.  The Texas Patter Jury Charge defines negligence as the “failure to use ordinary care.”  More specifically, negligence is the “failure to use the degree of care that a person of ordinary prudence would use use under the same or similar circumstances.”

In order to support a claim of negligence, you must show four (4) basic elements:

• A Legal Duty
• Breach of a Legal Duty
• Proximate Causation
• Damages

Legal Duty.

A legal duty is simply a responsibility to act, or not act, in a certain way under certain circumstances.  For instance, everyone has a legal duty to keep a proper lookout when operating a motor vehicle.  Another example would be that a business owner has a legal duty to keep their property in a reasonably safe condition.

Duty Imposed Under Common Law.

A legal duty may be imposed by common law or by written law, such as a statute and regulation.  Most claims of negligence arise under common law.  Those duties have been established by the courts over the hundreds of years of jurisprudence in both English and American courts.  Some claims of negligence do also arise under statutes and regulations enacted by the legislature and other governmental branches.

Let’s take an auto accident for example.  Every person has a common law duty to keep a proper lookout when operating a motor vehicle.  This is not necessarily a duty that is written in any particular law or statute.  But it is a duty that has developed throughout history or pervious court decisions.  So, if you are rear-ended by another vehicle in which the driver was distracted, that other driver is violating their duty to keep a proper lookout.

Duty Imposed by Statute or Written Law.

On the other hand, there are legal duties imposed upon citizens by their government by and through the written statutes and other regulations.  For instance, if you are a pedestrian that is struck in a cross-walk by a vehicle that ran a red light, they would be guilty of negligence. That is because there is a statutory duty to stop at a red light.  Failure to stop at a red light is in violation of the written rules of the road enacted by statute.

No Duty, Then No Negligence.

Therefore, in order to have a negligence claim, you must first show that the law imposes a duty to act in a certain manner.  If there is no initial duty recognized under the law, then there is no claim of negligence.

A good example is a bystander.  Generally speaking, the law does not impose a duty upon people to come to aid of others.  For instance, if you are walking down the road and notice a house on fire, you are not under any legal duty to run into the house and save the occupants.  So, if the occupants are injured or killed in the fire, you cannot be sued for negligence in failing to rescue the occupants.  That is because there is no legal duty for you to act in that regard.  And since there is no legal duty for you to act, then you cannot be held liable for negligence in failing to enter the burning house.

Breach of Duty.

In order to prove negligence, you must also prove that the person breached their legal duty.  It is not enough to show that a legal duty existed.  You must also show that the person failed to act in accordance with their legal duty, thereby amounting to a breach of duty.

Likewise, if you are rear-ended by someone who was not paying attention, then that person has breached their legal duty to keep a proper lookout when operating a motor vehicle.  However, let’s assume you were rear-ended because the other driver had a heart attack and passed out behind the wheel.  If that is the case, then that driver would not be responsible for negligence because there was not breach of duty.  Although the driver still had the duty to keep a proper lookout, that driver did not breach that duty because the accident resulted from him having a heart attack and not because he failed to keep a proper lookout.

Therefore, having a legal duty is not enough to prove negligence.  You must also show that the person acted or failed to act in such way that he breached that specific duty of care.

Proximate Cause.

The next element that must be present in order to have a claim of negligence is “proximate cause.”  Proximate cause is defined as the natural sequence of events leading to a certain result that is foreseeable by the actor.  Foreseeability is the crux of this element of negligence.  Not only does the actions have to cause a certain result, the result must be foreseeable.

For example, let’s say you are injured in a car accident.  As a result of those injuries, you went to the hospital and follow-up visits with doctors and physical therapy.  The injuries and other expenses that you incurred are proximately caused by the accident.  That is because anyone can foresee and anticipate that bodily injuries and medical treatment can result from a car accident.

But let’s say your injuries started causing problems in your marriage which leads to a divorce.  As such, you incurred legal fees for your divorce attorney and you want the other driver to pay those expenses.  You might be able to prove that the divorce was, in fact, caused by the accident and your injuries.  But you cannot hold the other driver responsible for your legal fees because those expenses were not proximately caused by the car accident.   In other words, the legal expenses of your divorce are not the type of expenses that anyone would anticipate, or foresee, as a likely result of a car accident.

Therefore, causation is only one part of a negligence claim.  You must show that the resulting losses were proximately caused by the incident.

Damages.

“No harm, No foul.”  You’ve probably heard this popular saying before.  It actually has some validity in the law of negligence.  The final element of a successful negligence case is that there must be some form of recoverable damages.

Likewise, if you are injured in a car accident, you might have medical expenses, lost wages, physical pain, etc.  These are damages which will support a claim for negligence.

However, if you are in a car accident that was so minor that it did not result in any noticeable damages to your vehicle or bodily injuries, then there would not be a claim for negligence.  This is true even if you can prove that the other driver was not paying attention and hit your vehicle.

Therefore, even if there is a duty and breach or duty, but no resulting damages, then there is no claim for negligence.  Likewise, “No harm, No foul.”

Final Thoughts

Negligence is probably the most popular and most often used theory of liability under Texas law.  This is especially true in personal injury cases.  Car accidents happen everyday.  And many of those accidents result in injuries which entitle the victims to compensation.

Fighting for injured Texans in the Dallas / Fort Worth area has been the focus of my practice since 1995.  It’s not a gimmick or a sideline.  It’s my specialty.

If you have been injured, get the representation from an attorney who know the ropes of D/FW area.  Robert C. Slim has been helping injured Texans get the compensation and justice they deserve. The consultation is absolutely free.  And there are never any fees or expenses owed until you collect on your case.