The Five Proofs of Negligence

By Staff Writer

At the root of most personal injury lawsuits lies the underlying problem of negligence.

For instance, most car accidents are caused by a driver being negligent in obeying traffic laws, whether it’s drunk driving or speeding. And negligence in the healthcare industry, or medical malpractice, is a failure to provide a patient with appropriate care. Even insurance disputes arise because an insurer is being negligent in reasonably upholding their customer’s policy.

So it seems that if negligence is such a key component in most personal injury cases, before you file a claim it is a good idea to know how negligence is established and if your case fits the bill.

The traditional method of proving negligence in a civil case is broken into the following order: duty → breach → cause → damage. What this means is an individual or organization must have a duty to provide the injured person with reasonable care or safety, that this duty was breached or broken, that the defendant’s negligence resulted in harm, and finally that the plaintiff suffered harm or damage.

While many legal articles may support this four-system approach to negligence, though this method can provide basic guideline, it falls short in distinguishing between two important divisions: factual and proximate cause.

Factual and Proximate Cause

David Owen, Carolina’s Distinguished Professor of Law at the University of South Carolina and author of “The Five Elements of Negligence” published in the Hofstra Law Review, sees the traditional four-system approach as flawed, saying the reality of proving negligence rests on five, not four, elements. His revised approach instead goes like this: duty → breach → cause in fact → proximate cause → damage.

Cause in fact, or factual causation, addresses whether or not a defendant’s accused negligent behavior can be factually connected to the plaintiff’s harm. In other words, factual causation is the actual link between negligence and the damage the victim sustained.

The second factor, proximate cause, is linked to factual causation, but also maintains a separate component altogether. Proximate causation explores whether the relationship between the defendant’s error and the plaintiff’s harm was sufficiently close, or proximate, rather than remote. Using the concept of “foreseeability,” this step prevents people from being held liable for damages that fall outside of their foreseeable scope of risk.

Having a solid grasp on the concept of causation in a negligence lawsuit can mean the difference between a successful lawsuit and waste of your time, money, and resources.

As Owen says: “Thousands of people every day are injured or killed in car collisions, slip-and-fall accidents, and myriad other kinds of accidents. While many such incidents are attributable to the negligence of one or more persons, many others result from simple bad luck or the careless behavior of victims themselves.”

If you have a question concerning whether or not negligence plays a factor in your injury claim, schedule a free consultation with a Tennessee personal injury attorney at Gilreath & Associates.

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