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The 4 Elements of Negligence in Personal Injury Cases

foot in cast

When you suffer an injury because of someone else’s fault, you have the right to be compensated for the damages you’ve suffered. But whether that right becomes a reality through a fair personal injury financial settlement may depend quite a bit on the diligence and advocacy efforts of your attorney. It’s necessary to prove the 4 elements of negligence. Even in cases where the defendant’s fault may seem cut-and-dried, proving all 4 of these elements can be more difficult than it might seem. Furthermore, all four elements must be present, or there will be no settlement.

The 4 Elements of Negligence: What They Mean & How To Prove Them

The 4 elements of negligence are as follows…

  • Duty of Care
  • Breach of Duty
  • Causation
  • Damages

Here’s what they mean…

Duty of Care

It’s not enough for the defendant simply to be responsible for the plaintiff’s injuries. The defendant must have had a responsibility to the defendant to begin with.

To illustrate this, let’s use an obvious example where duty of care is not present. A homeowner owes no duty of care to a burglar. If a person unlawfully enters your home and steps on a nail protruding out of the floor, it really doesn’t matter if the homeowner was negligent in leaving the nail out. Trespassers, except in rare situations, usually involving children, are not owed a duty of care.

Conversely, if an invited guest were to step on the nail, then duty of care would be present. Property owners have a duty of care to those they invite to their home. Businesses have the same duty to customers and others who enter their place of business. Medical personnel owes a duty of care to their patients. Drivers and motorcyclists owe a duty of care to each other. The existence of this duty is the foundation of any negligence claim made against the defendant.

Breach of Duty

The second step is to show that an existing duty of care was breached. The state of California does not expect people to be perfect. Accidents happen. Sometimes, the person we invite over for a game of pickup basketball sprains their ankle and it’s no one’s fault. Sometimes, a car skids on a rainy day and the accident is no one’s fault. When that happens, the plaintiff’s injuries have to be covered by their own insurance. But what if the defendant did not exercise a reasonable standard of care? This is the principle that is used in determining if there was breach of duty.

Let’s say the homeowner hosting a pickup basketball game knows that there is a space underneath the hoop, where the driveway connects with the grass, where there is a bit of a drop off. The person driving in for a layup would be uniquely vulnerable. If the homeowner warns the participants ahead of time, they have a viable defense. But if they just let their guests play, unaware of the dangers, this might be seen as violating the reasonable standard of care principle.

Or to look at our car accident example, drivers are expected to adjust for conditions. Even a driver going the speed limit might be seen to have breached their duty if a reasonable person would have slowed down under the circumstances.

Who decides what’s reasonable and what is not? If a case goes to court, the answer is the 12 individuals on a jury. The quality of one’s attorney can help in shaping how the jury understands the facts of the case.


The breach of duty must then be established as the cause of the plaintiff’s injuries. This might seem self-evident, and in some cases it will be. The person who suffers catastrophic injuries in a multi-car crash quite clearly had their injuries caused by the accident. But not every personal injury case is this clear-cut.

Let’s return to our hypothetical incident of a car crash on a rainy day, We’ll assume, for the sake of discussion, that the plaintiff’s injuries are to the back and neck and came about after being rear-ended.

What if the plaintiff had pre-existing back problems? The lawyers for the defendant’s insurance company might argue that the injuries are the result of those pre-existing conditions, and not caused by the car accident. Plaintiffs should assume that the insurance company will review all relevant medical records.

Furthermore, plaintiffs should also adopt a policy of silence in the aftermath of an accident. After a fender-bender, it can be easy to reassure the other driver that you’re okay. The injured plaintiff might take to social media to tell their network about the incident and conclude with “Glad I’m okay”, or words to that effect.

All of this can be used by the defendant’s lawyers to undermine causation, especially if pre-existing conditions are present. It’s the job of the plaintiff’s attorneys to be even more zealous in keeping the link between accident and injury—the causation link—intact.


Our last step in proving negligence is to show that all of the above elements resulted in damage to the plaintiff. This is another area where showing what it means might be best accomplished by showing where damages would not apply.

The hypothetical basketball player turns their ankle in that vulnerable spot on the defendant’s driveway. But it turns out, there was no lasting damage. After feeling really sore for a short time, the plaintiff is back up and moving around in a couple hours. Or, at worse, they had to ice it for a little bit. The defendant is still at fault—they still breached their duty, and that breach caused the injury. But there are no medical bills, no missed time at work, and it’s quite unlikely there was any real trauma. All of which is to say there are no damages.

When there are damages, it’s the job of an experienced lawyer to flesh out the full scope of what the injured plaintiff lost. That starts with hospital bills and lost time at work. But it also includes the cost of ongoing rehab. For serious accidents, there may be significant mental trauma. That means therapy. In catastrophic injury cases, it’s possible a plaintiff’s entire home may need to be remodeled or even sold, so they can live in a home fitted with rampways.

All of these are costs that can be quantified in concrete ways. Less concrete—but no less significant—are the intangible costs of lost joy. What is the value of being unable to sleep due to recurring nightmares? Or no longer being able to partake in treasured activities? Or simply being unable to enjoy time with family and friends. Truly assigning a dollar value to these losses is impossible. But the legal system is obligated to try. A good lawyer can work with plaintiffs and their families to illuminate all a plaintiff has lost because of their injuries.

Diligent On The Details; Passionate in Advocacy

Allen Semelsberg Kaelin LLP prides ourselves in the tenacious preparation we do on every personal injury case. Little details can add up to significant dollar amounts and we know our clients are relying on us for a fair settlement. Backed up by diligent preparation, we can then be passionate advocates for fairness, whether that’s in settlement negotiation or in a court of law. Call our office today or contact us online to set up a consultation.