How Important is Negligence in a Personal Injury Case? 4 Elements That Must be Proven for a Successful Claim

October 21, 2021

How Important is Negligence in a Personal Injury Case? 4 Elements That Must be Proven for a Successful Claim

Negligence is a legal concept used to establish that the person that caused an incident is at fault.

In personal injury lawsuits, the victim will rely on the concept of negligence to have the at fault party pay for their injuries.

A personal injury case occurs whenever someone injures another due to a failure to act with reasonable care.

There are four elements to negligence that must be proven for a claim. The four elements of negligence are the following:

(1) Duty
(2) Breach
(3) Causation
(4) Damages


Courts use the term “negligence” to refer to the failure to live up to the standard of care. Thus, a person’s standard of care is what is known as their “duty.”

The standard of care a person is expected act with is ordinary care. Ordinary care is how a reasonable person in a similar circumstance would have acted.

To say that a person acted negligently is then to say that they did not act how a reasonable person would have acted in the same situation.

Breach & Negligence Per Se

“Negligence” refers to the second element of the claim, i.e. the breach of a persons’ standard of care.

There are several ways to establish a breach of duty. A common used method of establishing a breach of ordinary care is to evaluate whether a reasonable person in a similar circumstance would have acted in the same way.

It is generally agreed upon that a reasonable person considers the foreseeable risk of injury that a certain action will impose, the extent of the risk their action causes, the likelihood of causing someone harm, and if there is an alternative to whatever action they are about to take.

For example, a reasonable person driving their car while it’s raining will likely travel at a slower speed than usual. They may also avoid any sudden lane changes because of the increased likelihood of causing an accident.

It is also important to note that a person’s emotional and mental disabilities are not considered when determining whether their conduct was negligent.

Moreover, a person is negligent if, without excuse, they violate a statute that is designed to protect against the type of accident that their action caused, and if the victim is within the class of people the statute is created to protect.

A violation of a law creates a presumption that the person who violated it was negligent and if the party that violated the law fails to prove that a reasonable person would have acted the same way, then they are negligent per se.

For example, it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle under CA Vehicle Code 23152. Thus, the duty established is to not drink and drive, and the class of people to protected by the law are other drivers and pedestrians who could be involved in a crash.

If a person was drinking and driving, there are sufficient facts to have the case at the very least be heard by a jury. If there is proof that the negligent party violated a statute, the jury no longer needs to decide whether the person who caused the accident was at fault, because by violating the law, they are already negligent per se.


After demonstrating that there was a duty owed to the victim and the at fault party breached that duty, we must then prove that the breach was both the “actual” and “proximate” cause of the victim’s harm.

Actual cause, also sometimes referred to as the “cause in fact”, states that had the at fault party not acted negligently, the victim would not have been injured.

For example, in a car accident case where the victim was injured by a negligent driver, the question is, if the driver did not act negligently by speeding or conducting an unsafe lane change, would the victim have been injured?

If the answer is “no,” then actual cause has been established.  The proximate cause must be proven in order to succeed on our negligence claim.

Proximate cause, also referred to as “legal cause,” states that the injuries in question must have been foreseeable.

To establish the at fault party was the proximate cause, we must prove that the at fault party who acted negligently should have reasonably anticipated that their actions could result in the injuries that occurred.

The most common test and the one used in California for proximate cause is foreseeability, which can determine if the injury that came from the negligent act was reasonably predictable, and if the injury is common from such conduct.

For example, it is reasonably foreseeable that a driver of a sedan, once rear-ended by a truck traveling at 60 mph, would suffer neck and back injuries.


Lastly, we must prove a legally recognized harm, usually in the form of physical injury to a person or to property, such as a car in a car accident.

For there to be a lawsuit, along with proving that the at fault party had a duty that they breached, the victim must also provide evidence that they suffered damages.

Damages are proven through presenting medical records, bills, or providing evidence of lost income because of an injury. In an automobile negligence claim, property damage estimates, mechanics bills, and medical providers are used to establish damages.

Additionally, California allows victims to seek damages for pain and suffering and loss of enjoyment of life.

All of the above must be proven in a victims’ complaint that is to be drafted by their attorney promptly before the termination of the statute of limitations of the injury.

What is gross negligence?

Most personal injury lawsuits will be for claims of ordinary negligence. However in some instances gross negligence may apply.

Gross negligence is defined as an extreme departure from behavior that is generally acceptable. Gross negligence connotes a great lack of care or indifference of attitude to the consequences ones’ actions may bring.

Gross negligence is determined by a jury based on the facts presented. The difference between establishing whether the misconduct was negligent or grossly negligent comes to play, especially during the damages analysis as explained below.

What are common defenses to negligence claims?

The most common negligence defenses in California are pure comparative fault and assumption of risk. The purpose of an at fault party of asserting these defenses are to eliminate or decrease their liability of the incident, in turn having to owe less money to the victim.

Under the defense of pure comparative fault, the at fault party will only have to compensate the victim in accordance with his/her degree of fault.

Comparative negligence allows a negligent victim to recover some damages for their injuries, and proportionally reduces the damages they are to receive based on the degree of fault the jury finds them to be for the incident.

Under an assumption of risk defense, a victim is said to “assume the risk” of an injury if he/she voluntarily enters a dangerous situation fully aware of the risk involved. The policy behind this defense is that a victim who voluntarily, meaning they had a choice to avoid the danger, consents to a dangerous activity cannot sue later if they are injured.

For an at fault party to prove that the victim assumed the risk, they must show either an expressed assumption such as a liability waiver, or prove there was an implied assumption.

To assert an implied assumption of risk, the at fault party must prove:

  • The victim had actual knowledge of the danger involved;
  • The victim understood and appreciated the risks associated with the danger; and
  • The victim voluntarily participated in the activity with full knowledge of the danger.

Racecar drivers show implicit assumption of risk. A racecar driver knows and understands the risk of driving at high speeds with other cars on the track acting in the same fashion, and that a car crash may occur at any point in time at each race.

In contrast, a civilian does not expect to crash their car on the way to a grocery store.


If you have been recently involved in a car accident, slip and fall, or any other form of personal injury, we invite you to contact our personal injury attorneys for a free consultation.

C&B Law Group prides itself on our strong attorney-client relationships with people throughout California, including Sacramento, San Diego, and more.

We are here to help. Contact us today!

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