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What is Negligence?

What is negligence?

Although the term is used outside of the practice of law, primarily to create the implication of mistakes of great magnitude, the definition of "negligence" is a legal one. Essentially, negligence occurs when there is a duty owed, a breach of that duty, damage to the individual against whom the breach occurred, and a "causal" or direct relationship between the breach and the damages.

When these elements exist, there is a cause of action under Massachusetts law for negligence. Now, just as there is a specific legal definition of negligence, there are too definitions for the four elements. As a lawyer practicing exclusively in the area of injury law, I've been confronted by many a scenario of injury, explained by an injured party trying to make his or her case that there is in fact a cause of action.

Unfortunately, it's just not as simple as people would hope. All four elements are well developed through extensive case law. While it can be frustrating to learn from a lawyer that your injury is not one which justifies the payment of a settlement, it's more frustrating to learn it from the judge.

It's true that every case is unique, with it's intricacies, details, parties involved, etc. There may be something about your case that defies the general rule and for that reason, you should speak with an attorney experienced in this area of practice. But in the meantime, educate yourself on the basics. Here I will provide you with a basic understanding of the four elements and which should leave you with a basic sense of whether your case has merit.

Duty of Care

There can be negligence only when there is a breach of the duty to use reasonable care. Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1998). No breach to use reasonable care, no negligence. That rule alone has great implication. It means that not all injuries, even those not the victim's fault, amount to negligence. This case also stands for the point that whether a duty of care existed is a question for the Judge, not the jury. So thoughts of pleading your case to the jury in order to convince them that such a duty existed, should be disposed of. The duty an individual must exercise is called the "standard of care." The generally rule, although there are exceptions, is that people should take the degree of care that a reasonably prudent person in a similar situation would take.


Deviation from the reasonable standard of care would be a breach of the duty and would support a claim of negligence. Remember, the standard of care is based on the situation, so adjust your expectations accordingly. A person driving their vehicle to a social event may have a higher duty of care than an individual being chased by a violent stalker.


This is the more complicated of the elements to put in plain terms. That's because there are actually two components to the analysis: 1) Actual Cause and 2. Proximate Cause.

To prove Actual Cause, also known as "but for" cause, "a plaintiff need only to show 'that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was responsible than from any other cause . . The plaintiffs are not required to eliminate entirely all possibility that the defendant's conduct was not a cause." Mullens v. Pine Manor Coll., 389 Mass. 47, 58 (1983). You essentially have to show that the defendant's conduct was more likely than not a substantial factor in bringing about the harm.

To prove Proximate Cause, also known as "Legal" cause, you must prove that the injury or damages were within the foreseeable risk of the conduct of the defendant. A completely unforeseen injury would not be negligence. When we look at car accidents, for example, there are few unforeseeable damages because driving is a generally dangerous activity.


The last element required to prove negligence is "Damages." You must be damaged in some regard to establish a claim of negligence. If you are hit by a car at one mile-an-hour and are not injured or showing any level of pain and suffering, you don't have a negligence case. This cause of action is designed to provide recourse to those who have been injured and/or damaged due to another person or entity not operating within a reasonable degree of care.

That said, the damages available of in negligence case are varied. They include, economic damages, such as lost wages and medical bills. And, they include pain and suffering. That is, a dollar amount to fairly compensate you for having to endure pain and suffering. This may be physical and it may be mental suffering. In awarding damages, a jury may consider the extent of the injuries, the suffering resulting, the age, health, habits, and condition of the injured person before the accident and the resulting loss.

As I stated at the outset of this article, if you want a true assessment of your case, speak with a qualified Massachusetts Personal Injury Attorney. There are intricacies of this practice area which you may not be aware and your time for bringing a claim starts running from the day of the injury. If you'd like to speak with an injury attorney from our firm, confidentially and for free, call (866) 995-6663 today.

Categories: negligence


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