Law of Negligence – Overview

Law of Negligence – The Crux to Personal Injury Claims

Millions of Americans travel by vehicle, and, as a result, car accidents occur daily. Unfortunately, accidents are often accompanied by injuries. Generally, an injured party in a car accident must rely on the legal theory of negligence in order to recover compensation for their injuries. Negligence is likely the most utilized legal concept for proving a bodily injury claim, but it is also the most misunderstood or misconstrued. Most attorneys can attest that the law of negligence is one of the most complex legal concepts studied in their first year of law school; therefore, this article will provide a rudimentary overview of the legal concept.

Negligence Defined

Essentially, a person is negligent when he or she has behaved or acted in a careless and thoughtless manner, and, as a result, causes harm or injury to another. While this may seem very straightforward, it’s important to understand that proving all of your damages are caused by the accident can be very difficult. In order for you to be able to prove the at-fault driver was negligent, one must show that the at-fault party had a duty to act with reasonable care (duty), that the at-fault driver failed to act carefully (breach of duty), that the at-fault party’s actions caused your injuries (causation), and that you actually suffered loss or injury (damages). In other words, in order for an injured party to recover compensation from an at-fault driver for negligence, the plaintiff must prove four elements:

  1. That the at-fault driver owed you a duty of care
  2. That the at-fault driver breached that duty of care
  3. That the breach of duty by the at-fault driver was the actual and proximate cause of your injuries;
  4. That you had damages to yourself (bodily injuries) or your property

Important Note: Duty of care and breach of duty are often grouped together because they are similar, as are the last two elements of causation and damages.

Duty of Care

Duty of care is a legal term that refers to the responsibility one person has to avoid causing harm to another. It is a type of social contract, which includes the implicit responsibilities held by individuals towards others within society. In most cases, every person has at least some duty of care toward others. When a person engages in an activity, he or she is under a legal duty to act as a reasonable, ordinary and prudent person in the same or similar circumstances, often known as the “standard of care” or the “reasonable person standard.” Everyone must take reasonable care to avoid injury to others.

Basic Standard of Care – The Reasonable Person

Again, an at-fault driver’s conduct is measured against that of a reasonable, ordinary, prudent person. The “reasonable person” standard is measured objectively in that it does not take into consideration the emotional state, opinions or status of the at-fault party. In other words, the at-fault party is deemed to have knowledge of things known by the average member of society and expected to act as one would under similar circumstances.

Important Note: In North Carolina, children are not held to the same standard of care for negligence as adults. North Carolina follows the Rule of Sevens.

Breach of Duty

Once a duty of care is established, you must then show how exactly the at-fault driver violated (breached) that standard of care. Typically, an at-fault party has breached their duty of care when the actions taken or not taken by the at-fault driver failed to meet the required level of reasonable care under the circumstances.

There are several different ways in which a person can breach the duty they owe to you on the road. Typically, evidence relating to custom, usage or violation of a statute (negligence, per se) is used to prove that the at-fault driver breached a duty. For instance, if the at-fault driver is given a citation by the officer at the scene of the accident, that alone could be enough to established that a duty was breached. With this being said, the citation must be for a moving violation that could have actually caused the accident. Therefore, a failure to yield citation could be strong evidence that an at-fault driver breached a duty, whereas a seatbelt ticket or expired registration could not be used to prove a breach of any duty.

If the at-fault party is charged and prosecuted, then the violation of the moving fraction could be used at “negligence per se.” Negligence per se occurs when an individual violates a statute and therefore duty and breach of duty is assumed.

Examples of Duty and Breach of Duty

A driver has a legal duty to operate his or her vehicle with reasonable care at all times, and this includes taking into consideration factors like traffic, weather and visibility. So, in many cases, if the defendant violates a driving law, he or she will be said to have breached the duty of care to other drivers if he or she causes an accident. For example, let’s say Bill is speeding and not paying attention to the road, and he runs a red light and crashes into Sue. Bill had a duty to act in a reasonable manner, which includes obeying traffic laws; Bill breached that duty by speeding and running the red light. Since Bill has a duty to exercise the same care that a “reasonable person” would in the same situation, which includes obeying traffic laws and paying attention to pedestrians and other drivers, it is likely Sue will be able to prove that Bill had a duty and breached that duty.

In some situations, determining the duty of care is difficult because there are no laws (like traffic laws) that spell out how a person should act. For example, a grocery store has some duty of care toward its customers’ safety, but there are no specific legal guidelines on exactly what the grocery store owner must do to satisfy that duty. The law simply requires the store to take “reasonable” steps to ensure customer safety, such as regularly checking the floors for spills. But how frequently must the store check for spills? Unfortunately, there’s no precise answer. If a customer has an accident involving store safety, the argument revolves around whether steps taken by the store qualified as “reasonable.”


Understanding and grasping causation and how it works can be difficult for even the most seasoned attorney. With this being said, there are certain things about causation that are important for everyone to understand when trying to establish negligence. In general, causation is a causal connection between the at-fault driver’s conduct and the injury you suffered. In order to establish causation, you must be able to prove that the at-fault driver’s conduct was both a factual cause (cause in fact) and a legal cause (proximate cause) of your injuries.

An at-fault driver’s conduct is the cause in fact of an injury when your injuries would not have occurred but for the at-fault driver’s conduct; this is often known as the “but for test.” In essence, if the answer is no to the following question, “Would I have been injured but for the other driver’s act?” the cause in fact can likely be established. For example, suppose Driver A is driving through an intersection, and Driver B runs a stop sign and hits Driver A’s car. Driver A is injured in the accident. Driver B’s running the stop sign would be the cause in fact of Driver A’s injuries, as Driver A’s injuries would not have occurred “but for” Driver B’s running the stop sign.

Once cause in fact is established, you must further prove that the at-fault driver’s conduct was the proximate cause of your injury. Proximate cause generally refers to whether the injuries are foreseeable. Injuries are likely foreseeable if a reasonable and prudent person could have foreseen that harm would likely result from the at-fault driver’s conduct. Proximate cause seeks to limit the at-fault driver’s scope of liability by looking at the remoteness of the injury; thus, the injury should be close in time and space to the conduct. Furthermore, proximate cause is an inexact formula that takes a common sense and fairness approach.

Important Note: Please be aware that North Carolina does follow the eggshell skull rule, which essentially states that an at-fault driver takes the injured party as they find them. In other words, if someone has more significant injuries due to a disease, the at-fault party will still be liable for all of those related medical expenses. For more information, please find our linked article to the topic under the subheading “Other Articles that May be Worthwhile Reading.” 


Proving damages is essential to establishing your claim against an at-fault driver. Essentially, you have damages when you have sustained actual harm or injury. Also, you must be able to prove that you sustained actual harm or injury. Damages are not assumed. In other words, if you were involved in a minor accident, you would need to prove or establish that your vehicle did in fact sustain damages or that you did in fact sustain injuries. This can be done through repair shop estimates and medical records.

Typically, whenever you are in a motor vehicle accident, there are two types of damages included in a bodily injury claim: special and general damages. Special damages are those that are quantifiable, meaning reasonable and necessary medical expenses, lost wages, and out-of-pocket expenses. General damages are those that are much more speculative in nature and include things like, pain and suffering, emotional distress and loss of consortium. For a more detailed analysis of special and general damages, please find the link to our article entitled Introduction to NC Accident Damages located in Other Articles that may be Worthwhile Reading.

Important Note: You must be able to establish or prove a causal relationship between your motor vehicle accident and every individual piece of damage that you wish to claim. In other words, for every dollar you are claiming as your special damages, you must be able to establish that the accident was the cause.

For example, if you have an injury to your shoulder and to your foot, and you seek treatment for both following your accident, you must be able to establish that both injuries were caused by the accident in order to include all medical cost as your damages. Hence, if you suffer from chronic foot pain (pre-existing injury), you may have a hard time proving that the treatment related to your foot pain should be included as your damages for your car accident.


Please keep in mind that this article provides a very rudimentary explanation of the legal theory of negligence. Negligence has many moving parts, and depending on the facts and circumstances, each can play a very different role in establishing your claim.

Therefore, we have provided several links that will help further explain the numerous factors that may arise when trying to prove your bodily injury claim under the law of negligence.

Other Negligence Articles

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