Negligence: What It Is and How to Prove It

What Is Negligence

Most personal injury cases proceed on a theory of negligence.  Even product liability cases, which have the additional option in most instances of proceeding on what is known as “strict liability”, may also proceed on negligence.  Automobile cases, medical malpractice, slip and fall, dog bite and most other cases are ultimately submitted to juries based on whether the defendant was negligent in the infliction of injury on the plaintiff.  So, what is negligence, and how can you prove it?

Defining Negligence

Generally, “negligence” is the failure to exercise “ordinary care”.  The law defines ordinary care to mean, the failure to exercise that degree of care that an ordinarily careful and prudent individual would exercise under the same or similar circumstances.  The “same or similar circumstances,” can add a host of considerations and nuances to any evaluation of due care.  Let’s consider some examples.

Most adults are licensed and experienced operators of motor vehicles.  So, most jurors have the experience to evaluate whether a defendant driver who hit another vehicle, resulting in injury, exercised due care.  Motor vehicle cases are generally submitted to a jury on one or more of the following theories of recovery:

  • Exceeding the speed limit;
  • Failure to stop at a light or sign;
  • Refusal/failure to yield the right of way;
  • Failure to keep a careful lookout for vehicles and pedestrians;
  • Impaired driving;
  • Driving at a speed that was excessive given the conditions (e.g., rain,  snow or ice).

There are others, but the above list covers most potential theories for submitting negligence in a motor vehicle collision.  Sometimes, an act of negligence is also covered by a law, such as exceeding a posted speed limit.  When there is an applicable law, the case may progress on what is known as “negligence per se”.  There is much less argument that someone was not negligent if the mere act was in violation of a law.

Proving Negligence

Most jurors are essentially their own experts when it comes to evaluating the operation of a motor vehicle.  So, it is rare that expert witnesses would need to testify that a driver acted negligently.  In other words, a police officer is not needed to testify that the driver’s failure to stop at the red light amounted to negligence.  Jurors have that experience in their respective lives and can evaluate what constitutes ordinary care.

In contrast are cases against professionals. These cases typically allege injury due to a breach of the standard of care for the professional.  Cases like this are outside the common understanding of most jurors.  Hence, for cases against doctors, lawyers, accountants, architects and the like, experts in the field are required.  These experts can help jurors understand how the professional defendant departed from the standard of care; e.g., a general surgeon.

For example, let’s assume an obstetrician fails to recognize fetal distress.  Therefore, they do not perform a Caesarian section to deliver the baby in time.  The baby experiences brain injury due to lack of oxygen.  Again, expert testimony is required to prove that the doctor was negligent in failing to properly diagnose fetal distress and/or perform an emergency C-section.  In this example, the obstetrician’s failure is the legal equivalent of the motorist who fails to stop at the stop sign.  The only difference is in how the plaintiff must prove negligence.

An expert obstetrician will be called as a witness.  The expert will be used to interpret the findings of the fetal heart monitoring, other physical signs of fetal distress and the signals mandating an emergency delivery.  At the end of the case, however, the jury is asked to determine whether the doctor was negligent.  Albeit, with the aid of expert testimony to direct that decision.

Problems with Proving Negligence

Negligence can be either an act of “commission” or an act of “omission”.  Negligence by commission means that someone performs an act negligently, such as driving at an excessive speed.  By contrast, negligence by omission means someone fails to act at all.  For example, a lifeguard who fails to jump in and save a drowning child.

Jurors are asked, even when expert testimony is required to prove a case, to draw on their own experiences and training to assist in the interpretation of the evidence.  In a medical malpractice case, both sides will call experts on the issue of negligence.  The plaintiff’s attorney will call an expert to prove negligence.  The defense attorney will call an expert to say otherwise.  How is the jury to determine which expert is right?  That is one of the principle challenges in cases involving professional negligence.  In such situations, the court expects the jurors to draw on their own common sense and experience to distinguish between the “dueling experts”.

Quite apart from instructions from judges to jurors defining negligence, most folks have a basic understanding of due care.  Key to the analysis of any given case, however, is the “same or similar circumstances”.  Hence, jurors are to evaluate whether a defendant is negligent by judging the circumstances at the time the act or omission occurred.  What if the defendant is a child?  Children can be negligent.  But, when jurors decide, they will apply a standard of care for a child, not an adult.

Contact An Attorney

In all cases involving negligence, an attorney is best able to evaluate your case.  Due to the varying standards and requirements for proving negligence, you should only consult and retain an experienced attorney.