Fact Checked

What is Required to Prove Negligence?

Misty Amber Brighton
Misty Amber Brighton

In order to prove negligence, a person must have had a duty of care, which means a responsibility to act in the best interest of another. There must also have been a breach of this duty. This breach is the cause of the harm, resulting in actual physical, financial, or emotional damages. In most countries, negligence is a civil wrong, so a plaintiff or person bringing a lawsuit must show it was more likely than not that these things occurred.

A duty of care requires someone to act in the best interest of another. In most jurisdictions, this means behaving in a manner expected of a reasonable person under the circumstances. A written contract is normally not necessary in order to prove an individual had a responsibility to carry out this duty.

If it can be shown a duty of care existed, this duty must have been breached. This means that the person who was under the obligation to act responsibly failed to do so. The breach of duty does not have to be intentional in order to prove negligence.

Many court cases deal with medical negligence.
Many court cases deal with medical negligence.

A plaintiff should be able to prove that the breach of duty was what actually caused him harm. Many attorneys refer to this as the but-for clause, which means the harm would not have happened "but for" the defendant’s failure to act appropriately. Negligence cases can be dismissed if it cannot be proven that the breach of duty was the actual cause of an incident.

People who are guilty of negligence usually have to pay money to the victim.
People who are guilty of negligence usually have to pay money to the victim.

There must be some form of damage in order to prove negligence. Damages may include physical harm, financial hardships, pain and suffering, or a combination of these. If an individual is unable to establish that he did indeed suffer, he can be barred from filing a negligence lawsuit in many countries.

In most jurisdictions, the burden of proof is normally on the person bringing the lawsuit. This is, however, typically a civil action, and therefore the burden of proof requirement is less than that in a criminal case. Most judges require attorneys to prove negligence by a preponderance of the evidence, which means "more likely than not".

Proving negligence is often necessary to recover damages in a lawsuit.
Proving negligence is often necessary to recover damages in a lawsuit.

Many negligence cases are settled out of court rather than being litigated. People who are found guilty of negligence are normally required to make restitution to the victim by paying a sum of money. Jail time is rarely given because most judges feel it does not benefit society to incarcerate people for what are often damaged as a result of unfortunate accidents.

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Discussion Comments


What if someone is the legal guardian of another adult? The adult lives in an independent senior living facility, although he or she is not yet 60, just classified disabled mentally. You would not really know that though, because this person is very intelligent about football, card games and similar activities. The guardian controls all the money, clothes and food purchases. The adult has no choices in the food purchased and rarely has food in the apartment, yet is punished by the guardian if it is discovered that food has been accepted by caring neighbors.

One neighbor gave the adult a TV she was replacing and the guardian was going to take it to give to her daughter instead of letting the adult keep it. There are many more similar examples of this kind of treatment. My question is: can anything be done about the way this person is being neglected and mistreated by the guardian and the obvious mishandling of this person's income?


I think that some people who are found negligent should have to spend time in jail, depending on what the circumstance is, what the character of the defendant is like. I don't think in all cases it is an "accident" and not everyone is pressing charges to get a monetary gain. Sometimes negligence occurs intentionally, and in those cases they should be treated as the criminals they are.

For instance, can't a parent and/or legal guardian be charged with negligence? And in cases like these, and other cases, this isn't always accidental. If a parent does not feed a child for a long time, this doesn't mean that they were not physically or mentally or financially able, this could be that they just care about themselves and that is it. People that do harmful things and knowingly do it should be put in jail, not just be fined an amount of money and set free. People like this should not be aloud to "care" for anyone again.

Or, like someone has already mentioned, a lot of physical and verbal abuse happen in nursing homes by paid caregivers. A lot of this takes place because seriously evil people who con themselves as being caring get jobs in places like this. These people should be locked and not be aloud to be in an environment where they have the opportunity to "take care" of anyone. A lot of elderly people die before justice is ever served for them, and money does not help anyone deal with anything unless it is just monetary loss. All other kinds of loss and abuse can not be helped with money.


Charges of breach of duty are often found in nursing homes. Many of them are hard to prove, even though there is some evidence of injury to the patients by the employees. That's why some families of patients are beginning to install electronic cameras and tape recorders to document any negligent treatment.

This is definitely a breach of duty and disregard for the level of care expected of an employee to a patient. Even the slightest verbal or physical abuse or neglect is considered a breach of duty.

Even if it is mild abuse, the case must be investigated, because if the employee isn't removed from the job, the negligence and abuse will likely continue.


I was in an auto accident that eventually lead to a settlement with the defendant's insurance company. I was waiting for a traffic light to change, and was rear-ended by a young male driver with another male passenger. He said he thought the light had turned green.

It was obvious his attention wasn't on his driving, thus he was negligent, even though it wasn't intentional. I was injured and required treatment. This accident also made me late for work.

I retained a lawyer, but the process took a long time. The case was eventually settled, and fortunately didn't have to go to court.

The duty of care is that drivers are supposed to pay attention and try to avoid harming another. The breach of duty was clear - he ran into my car, damaged it and injured me.


So, the article mentions that it can be hard to handle a negligence case, because sometimes the injury is not clear.

What are some of the different ways of proving negligence in court? At least from reading this article, it seems like there are a few major parts: duty of care, breach of care, and injury in fact.

Are there certain "tricks" that lawyers use to get these things proven enough that the judge will side with them? What about on the opposite end? What can a defendant do to convince the judge that they weren't responsible for care or didn't cause a real injury?


@kentuckycat - It seems like pain and suffering would go hand in hand with physical harm. I don't know how accurate the court shows on TV are, but on those, pain and suffering is usually charged after someone gets hurt.

It usually ends up being a very subjective charge, because you can't efficiently say how much the psychological harm from being injured is. I think it is mostly up to the judge to decide what is a reasonable amount.

What I'm wondering about is whether you could charge someone with negligence if you were in a wreck and were injured. Could you sue the other person for that, or would it just be up to the insurance to give you the fair payment?


What are some specific examples of someone engaging in negligence besides the doctor example? I think it would be easier to think of types of negligence that end in physical injury than financial or pain and suffering.

Financially, I wonder if someone like Bernie Madoff was charged with negligence during his trial. Obviously, that was the least of his worries, though.

Also, what is the difference between physical harm and pain and suffering? Can pain and suffering include psychological damage?


@KaBoom - But consider that someone being tried in a criminal case gets all the rights afforded to them. If the law turned negligence cases into criminal matters, the state would have to spend a lot more money on juries and judges.

I realize you aren't suggesting they should be tried as criminals, the plaintiff should just have to have the same burden of proof, but there's really no way to have that be the case in a civil trial.


I don't think it makes much sense that the burden of proof is so much lower in a civil case than a criminal case. I believe in a criminal case the prosecuting side must prove that the defendant committed the crime "beyond a reasonable doubt." The civil standard of "preponderance of evidence" is less stringent.

I feel like civil cases can have serious outcomes for the defendant if they lose. As the article said, usually the defendant will have to compensate the plaintiff monetarily. Sometimes with a very large sum of money. I think this is fine, as long as the defendant actually was negligent! But if the person wasn't actually negligent, it would be very unfortunate for them to lose the case and suffer a monetary loss.


@Monika - Very true. I just wanted to point out, though, that a passerby does not have a duty of care to give someone medical treatment. However, every day people do have a duty of care to act as a reasonable person should be. Even if you aren't contractually obligated to someone in a professional capacity, you can still be negligent.

A good example of this would be if a person fails to perform up-keep on their front stoop in the winter. If their front stoop is icy, and their mailman slips and injures himself while trying to deliver their mail, I think the person would be considered negligent. The person knows that the mailman walks on their front stoop every day, and failed to remove the ice as a reasonable person should have.


I took an introductory law class as a college freshman, and I learned a lot of interesting stuff. One interesting thing I learned is that the duty of care can be different for different people.

For example, a doctor who is treating a patient has a duty of care to perform CPR on the patient if they stop breathing. This is because the doctor is treating the patient in a professional capacity, and resuscitating a patient is part of a doctors job.

However, if someone passes out and stops breathing on the street, passerby do not have a duty of care to perform CPR on the person. So a doctor could be considered negligent if he or she fails to perform CPR, but a passerby on the street would not be.

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    • Many court cases deal with medical negligence.
      By: Valeriy
      Many court cases deal with medical negligence.
    • People who are guilty of negligence usually have to pay money to the victim.
      By: Andy Dean
      People who are guilty of negligence usually have to pay money to the victim.
    • Proving negligence is often necessary to recover damages in a lawsuit.
      By: Anna
      Proving negligence is often necessary to recover damages in a lawsuit.