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What is Negligence?

Negligence is the basis of your personal injury or nursing home case. It must be proved in order to hold a person or company legally responsible for your pain and suffering. Proving negligence is required in most claims from accidents or injuries, such as car accidents or "slip and fall" cases.

There are four things that must be proven in court to constitute negligence; duty, breach, causation, and damages/harm.

In general, when an individual acts carelessly and causes an injury to another person, the careless individual will be held legally liable for the harm they caused.

Components of a Negligence Claim

In order to win a negligence case, the plaintiff must prove the following four elements to show that the defendant acted negligently:

  1. Duty - The defendant owed a legal duty to the plaintiff under the circumstances

  2. Breach - The defendant breached that legal duty by acting or failing to act in a certain way

  3. Causation - It was the defendant's actions (or inaction) that actually caused the plaintiff's injury

  4. Damages - The plaintiff was harmed or injured as a result of the defendant's actions.


When determining negligence, it is important to investigate if the defendant owed the plaintiff a legal duty of care. For example, the defendant may owe the plaintiff a duty to act with reasonable care by driving a vehicle responsibly. If the defendant takes steps to breach that duty of care, by drunk driving, driving aggressively, or being distracted, this can be considered negligence.

Breach of Duty

Breach of duty is determined usually by a jury, based on what a “reasonably prudent person” would do under a similar circumstance. The term "reasonably prudent person" refers to a legal standard that represents how the average person would responsibly act in a certain situation. It is likely that the defendant will be found negligent if the average person within similar circumstances would have known their actions would pose a risk to others, and would have acted differently.


This element requires the plaintiff to show that their injuries were directly caused by the defendant’s negligence. For example, the plaintiff sustained a neck injury due to the defendant rear-ending their vehicle, and that neck injury was deemed by a medical professional to be caused by the car accident. Furthermore, the second aspect of causation is if the defendant could have reasonably foreseen that their actions might cause an injury. If the defendant's actions somehow caused the plaintiff injury through a random, unexpected act of nature, the injury would most likely be deemed unforeseeable -- and the defendant will not likely be found liable.


Damages is the final element. This requires the jury to deem that the plaintiff should be compensated for their injuries. This is usually through monetary means and covers pain and suffering, admissible medical expenses and property repair.

If you have been injured, contact Kimmel Carter at 302-565-6100 for a free review of your case. For nearly 50 years we have helped tens of thousands of Delawareans receive the compensation they deserve.


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