What Are the Elements of Negligence ?

elements of negligence

One of the main elements of winning a big car accident settlement is to show that the other driver was at fault for your accident and injuries.
In other words, you have to show that the other person was negligent.

Proving someone is negligent may sound complicated but in reality there are four basic elements that insurance adjusters look at:

1st Element Of Negligence – There is a Duty of Care
2nd Element of Negligence – The Duty of Care is Breached
3rd Element of Negligence – The Breach Caused the Accident
4th Element of Negligence – The Breach Caused Documented Damages

The Four Basic Elements of Negligence

1st Element Of Negligence – There is a Duty of Care

Before we jump into the details, it is important to know that “negligence” exists in many different forms, but despite this, its definition stays roughly the same.

Negligence: Failure to exercise the care that a reasonably careful person would exercise in like circumstances.

Every driver has a fundamental legal duty to operate a motor vehicle in a non-negligent manner.

From the very start of driver’s ed, this is taught to everyone, and it’s not rocket science.

Put simply, if you’re driving a car you have the duty to do so in a manner that avoids injury or damage to other persons or property.

A big part of making sure that you follow this duty of care is that you follow the traffic and driving laws.

For example:

  • Driving under the speed limit.
  • Stopping at stop signs and red lights.
  • Using indicators when switching lanes.
  • Reducing speed near school zones

When considering fault in regards to duty of care, the main questions insurance companies ask are:

    • Did the person involved in the accident behave responsibly?
    • Were person’s actions careless and contributed to cause the accident?

2nd Element of Negligence – The Duty of Care is Breached

A breach of duty is when someone fails to uphold the basic responsibility towards others in terms of driving (as discussed previously).

Building off the previous examples of duty of care, a breach happens when you for example:

  • Drive over the speed limit.
  • Run through stop signs and traffic lights.
  • Switch lanes without using your indicator.
  • Driving fast in a residential area with kids and pedestrians

Let’s be honest we’ve all been guilty of one of these breaches at one point or another. Driving slightly over the speed limit seems like a minor infraction and it’s easy to simply say “everyone does it”.

However, once an accident occurs, everything changes. Your minor infraction will be examined more thoroughly to establish your fault and see if there was a breach of duty.

Taking things a step further — some breaches of duty (such as drunk driving) can lead to catastrophic injuries and/or death. In these serious cases, where breaches can be proven to be intentional, criminal charges can be filed as well as civil ones.

3rd Element of Negligence – The Breach Caused the Accident

This element is sometimes referred to as “causation”. It’s where an insurance adjuster will try to establish if the breach of duty directly lead to an accident.

If a drivers breach of duty can clearly be linked to the accident, the odds of finding them negligent or at-fault is extremely high.

Causation comes in two forms:

  1. Cause-in-fact: This refers to the event where a breach of duty is the actual, direct cause of an injury or damage.

Example: A driver that hits a person on a bicycle is the cause-in-fact of the cyclist’s broken wrist.

  1. Proximate cause: This means that a breach of duty may not have directly caused the damage, but the damage would never have occurred otherwise.

Example: A drunk driver hits a telephone pole which in turn falls onto a parked car with passengers. In this case, the drunk driver is the proximate cause for the injuries suffered by the passengers.

4th Element of Negligence – The Breach Caused Documented Damages

Closely related to 3rd element of negligence, the fourth aspect of establishing fault is proving that injury or damage has occurred.

Think of it process like this:

    • If a duty of care exists THEN is it breached?
    • if it’s breached THEN is this breach shown to be the cause of an accident/injuries?
    • If the breach is linked to the accident THEN it’s up to YOU to demonstrate the degree of the damages.

These damages can be a bodily injury, physical damage to your vehicle, lost wages due to time off of work or the more abstract pain and suffering.

Damages are usually categorized into “economic” and “non-economic” groups and from a claims perspective requires documentation such as:

  • Medical records
  • Hospital bills
  • Doctors notes
  • Car repair estimates
  • Accident photos.

All of these documents are used in the insurance claims process to further substantiate your injuries and calculate your pain and suffering.


Identifying who is at fault in a car accident plays a major part in determining how much your settlement is worth.

Just remember these basic points about showing who is at fault:

  1. The driver has a clear duty to drive responsibly and in a safe manner.
  1. To show fault the driver must then breach this duty.
  1. This breach of duty can be shown as the direct (or proximate) cause of injuries or damages.
  1. Injuries can be medically documented and related monetary losses, such as repair bills can proven as well.

Now that you understand the 4 basic elements of negligence you are prepared to properly negotiate your claim settlement.

One final thing to note is that some of these issues around negligence may not be relevant if you live in a no fault state. In these states, your accident must meet a certain threshold before a lawsuit can be file.

You can learn if this applies to you by reading our no fault states article. Drive safe.

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