What Is Negligence?

More and more people and groups are questioning the phrase “car accidents.” Planes crash, trains wreck, ships sink, so why should cars be involved in accidents? To be sure, most car crashes are accidental to the extent that they are unintentional. But one of the dictionary definitions of “accident” is “an event that happens by chance or that is without apparent or deliberate cause,” with synonyms like “coincidence, mere chance, and twist of fate.” In most car crashes, someone is clearly at fault, so this definition is inappropriate.

We all make mistakes, and when we make mistakes, we must take steps to make things right again. That principle is the underpinning of negligence law. In court, what does the victim need to prove to obtain monetary compensation that makes things right?

Burden of Proof

Many people remember the double murder saga of former USC and NFL standout O.J. Simpson during the 1990s. After a lengthy trial, a criminal jury decided that Mr. Simpson was not guilty of the crimes he allegedly committed. Yet in a later proceeding, a civil jury determined that he was responsible for the deaths and ordered Mr. Simpson to pay $33.5 million. How could two different juries look at essentially the same evidence and make two opposite conclusions?

In criminal court, the prosecutor must prove guilt beyond a reasonable doubt. Definitions vary by jurisdiction, but essentially, the state must present such overwhelming evidence that there is no reasonable explanation other than guilt. However, in civil court, the plaintiff must only establish liability by a preponderance of the evidence, which means more likely than not. If there are two equally-full water glasses on a table and a person adds an eyedropper full of liquid to the glass on the left, it contains more liquid than the glass on the right, and that is a picture of preponderance of the evidence.

In most negligence cases, the plaintiff must establish four elements, each by a preponderance of the evidence.


California and Nevada typically impose a duty of reasonable care in these situations. This legal responsibility comes from the 1932 English case of Donoghue v. Stevenson. At the time, there were essentially no negligence laws in either the United States or the United Kingdom. In this colorful yet also rather nauseating case, Ms. Donoghue’s friend bought her a bottle of ginger beer at a local cafe. As she emptied the contents, she discovered a dead and decomposed snail at the bottom of the bottle. Ordinarily, Ms. Donoghue could have sued for damages under contract law, but since she did not buy the beer, she relied on the then-novel theory that the beer bottler had a duty to sell bottles of beer that did not contain dead animals.

In deciding the case in favor of Ms. Donoghue and against the beer bottler Mr. Stevenson, Lord Atkin articulated the “neighbour principle:”

The rule that you are to love your neighbour becomes in law you must not injure your neighbour. . . .You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected.

The neighbour principle made its way into American law, and became the duty of reasonable care.

A higher duty applies in some situations. For example, in both Nevada and California, truck drivers, taxi drivers, Uber drivers, and other commercial operators are common carriers. These drivers have a higher duty of care with regard to the goods and/or passengers they transport from one point to another. Essentially, while the duty of reasonable care requires drivers to avoid crashes if possible, common carriers must take affirmative steps to ensure that their passengers arrive safely.


Duty is a legal question, and breach (violation) is a fact question. One way to breach the duty of care is to violate a traffic law, like speeding or making an illegal lane change. Drivers who are impaired by alcohol, drugs, or fatigue may also breach their duties of care, especially if they are common carriers.

Since this is a fact question, the jury must conclude that, by a preponderance of the evidence, the behavior was serious enough to breach the duty of care. For example, adjusting the radio is technically distracted driving, because drivers take their eyes off the road, take their minds off driving, and take at least one hand off the wheel while fiddling with the radio. However, such behavior may not constitute a breach of duty, in the minds of many jurors.


The third element is both a fact and legal question. Lawyers sometimes refer to the factual component as “but-for causation,” as in the crash would not have happened “but for” the tortfeasor’s (negligent driver’s) action or inaction.

Legally, the plaintiff’s damages must be a foreseeable result of the tortfeasor’s conduct. Most courts in both Nevada and California use the majority rule from 1928’s Paslgraf v. Long Island Railroad. In that case, a court determined that negligent railroad workers were not responsible for an injury that took place on the other side of the train platform, because the link between a man dropping a package of fireworks and scales toppling over because of the shock wave was too indirect. A few courts use the more-inclusive “zone of danger” test, and in these jurisdictions, bystander cases are a bit easier to win.


The plaintiff must sustain a physical personal injury, such as a broken bone or a brain injury, or property damage, such as a banged-up car, to satisfy this element. If there is a tangible injury, the plaintiff is also entitled to compensation for intangible losses, such as pain and suffering, loss of enjoyment in life, emotional distress, and loss of consortium (companionship). In some cases, additional punitive damages may be available.