We’ve all heard someone say, “Oh so and so was just being negligent when he ran that red light,” or “it was simple negligence when she to forget to turn off the power.” Clearly negligence means someone has done something they weren’t supposed to, but what does this concept really mean in legal terms? Here’s what you need to know about the concept of legal negligence means and how it can impact your ability to recover after an accident.

negligence as text overlaid on shadowed golden paper

Negligence defined: What is it?

A simple definition of negligence ithe “failure to take proper care, and, as a result, that failure causes injury or damage to someone.” In layman’s terms, that means someone did something they were not supposed to do, or failed to do something they were supposed to do.

So where does the concept of negligence come from? It’s been around in various laws for hundreds of years, but during the Industrial Revolution it began to enter the legal system more often. As more workers were injured by employers or modern technology, they looked for someone to hold accountable and the modern American concept of negligence was born.

Nowadays, every state in the US recognizes negligence, even if the legal descriptions are slightly different. However in most states, to prove that someone was negligent you will have to have evidence of four elements:


You must show that the person who injured you, or who owned or cared for the equipment that injured you, had a duty to operate in a way that would not cause injury. In other words, they had a duty to make sure this wouldn’t happen.


Next, you must show that the person breached that duty. Sometimes freak accidents happen and if a person can show he was doing everything right and did not breach his duty to others, a claim for negligence may fail.


You must show that the breach of duty actually caused your injuries. Sometimes even when a duty has been breached, but that breach didn’t cause the injuries, a person will not be found negligent. An example of this would be if a store fails to mop up a spill, but the injured person actually slipped because of the shoes they were wearing and not the spill.


Finally, you must show that the breach of duty actually caused you damages. In a personal injury case, you will usually need to show medical records of injury and treatment.

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Contributory negligence versus comparative negligence: Here’s where it starts to get complicated

Ok so now that we understand the basic elements of negligence, let’s dive a little deeper. What if the injured person was also doing something irresponsible? In our example above, if the store fails to mop up a spill but the injured person is racing through the store running from the cops, who is really negligent and therefore liable for the person’s injuries?

This is where comparative and contributory negligence come into play. These concepts look at the actions of the injured person and either limit or bar their recovery based on their own negligence. Usually a judge or jury will assign “percentages of fault” to each actor who may have caused the injuries.

Just to keep you on your toes, the real distinction isn’t so much whether the law says “comparative” or “contributory,” but whether the state laws involved pure or modified statutes.

In states with pure contributory negligence, if the injured person was negligent at all, even just 1%, they will not be allowed to recover for their injuries no matter how negligent the other party was. Sounds pretty harsh, right? Fortunately, only the District of Columbia and four states, Alabama, Maryland, North Carolina, and Virginia, use these laws.

Resource: Car Insurance Demystified, Part 1 & Part 2

In contrast, states that have pure comparative fault will allow an injured party to recover even if he was 99% at fault for his own injuries! However, his recovery will be reduced by his own percentage of fault. So if a jury in this example found that the plaintiff’s injuries were valued at $100,000, the plaintiff would actually only recover $1,000. There are 13 states that use these types of laws: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.

Finally, there rest of the states use a modified approach to comparative negligence, barring the plaintiff from recovering if he is a certain percentage at fault. For example, in states with a 50% Bar Rule, meaning a person can only recover for her injuries if she is 49% or less at fault. The states that use these laws include: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, South Carolina, Tennessee, Utah, and West Virginia.

Likewise, the remaining twenty-one states use the 51% Bar Rule, meaning a person cannot recover if they are 51% or more at fault for their injuries. This rule is very similar to the 50% rule and in both cases, the plaintiff’s recovery will be reduced by any percentage he is found to be at fault. The states using the 51% Bar Rule include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Wisconsin, and Wyoming.

Types of negligence: Do they matter?

There are many types of negligence that come up in the legal world. What each term means can vary from state to state. However, generally some of the most common terms and their meanings are below:

Gross Negligence

This phrase means exactly what it sounds like, someone has been grossly negligent in fulfilling their duty. For example, instead of just forgetting to do something at work, someone who was sleeping on the job could be found grossly negligent.

Per Se Negligence

This means you can show someone was negligent as a rule because they breached a duty created by statute. This comes up a lot in car accident cases where the liable driver has broken a law.

Tort negligence

This is the overall concept of negligence, which fits under the umbrella of tort claims in civil litigation.

Strict Liability

This term refers to dangerous activity that a state legislature has deemed inherently dangerous by nature, like blasting for mines. For people engaging in those types of activities, they will be strictly liable for any damages whether they were negligent or not.

Criminal Liability for Negligence

Many state statutes recognize criminal liability for many acts of negligence, such as failing to care for a sick child or ignoring a duty so important it becomes criminal. This type of negligence is handled strictly by a prosecutor pressing charges as opposed to an injured person hiring a personal injury attorney to sue someone in civil court.

Res Ipsa Loquitur

This Latin phrase means “the thing speaks for itself,” and the legal concept is used in cases where the exact act of negligence can’t be identified, but we all know the result wouldn’t have happened if someone hadn’t been negligent along the way. The classic law school example of res ipsa loquitur is a piano falling from a window; even if no one can say how it happened, we can all agree the piano wouldn’t have fallen if everything had been going according to plan.

Have you or someone you love been injured by a negligent driver?

If you were injured in an accident, contact us for a free case evaluation. We will work with you on a contingency-fee basis to gather this evidence and prove your case. An attorney can help you recover what you deserve, even if you are partially at fault for the accident. You may be eligible to file a claim for medical costs, emotional distress and further damages. Fill out our free case evaluation form to see if you are eligible for a claim. An experienced auto accident attorney at Morris Bart will assist you in the evaluation process. Initial consultations are free. We have office locations throughout Louisiana, Mississippi, Alabama, and Arkansas. Call us at 1-800-537-8185 today.

July 19, 2019 | Categories: Legal Tips, Personal Injury |