The Four…No, Five Elements of Negligence

Most legal experts will tell you that determining negligence consists of identifying four key elements: duty, breach, cause, and damage. This essentially means an individual or organization must have a duty to provide the injured person with reasonable care or safety, that this duty was breached or broken, that the defendant’s breach resulted in harm, and finally that the plaintiff suffered harm or damage.

While the four system approach to negligence is helpful in identifying whether or not an injury warrants legal action, it does fail to distinguish between two distinctly important concepts in the cause/effect relationship of negligence: factual causation vs. proximate cause.

Factual and Proximate Cause

Taking factual and proximate cause into account, David Owen—Carolina’s Distinguished Professor of Law at the University of South Carolina and author of the article “The Five Elements of Negligence” published in the Hofstra Law Review—considers the four system standard “misleading,” saying: “Negligence thus is most usefully stated as comprised of five, not four, elements: (1) duty, (2) breach, (3) cause in fact, (4) proximate cause, and (5) harm…”

The third of Owen’s elements of negligence, and the first branch relating to cause, is factual causation, which addresses the specific question of whether a defendant’s wrong behavior can be factually linked to the plaintiff’s harm. Factual causation is the actual connection between negligence and the damage the victim sustained.

Owens uses the example of a pedestrian hit by a speeding driver when they stepped off a curb. In a negligence lawsuit, the victim must not only prove that the defendant’s car hit them, and that the driver was being negligent, but also that it was the excess speed that actually caused the harm. If the evidence suggests the driver would have hit the pedestrian even if they were going the speed limit, then the accident was caused by the driver’s misconduct, not by negligence.

The second branch, proximate cause, though linked to factual causation, is a separate element altogether. Proximate cause explores whether the relationship between the defendant’s wrong and the plaintiff’s harm was sufficiently close, or proximate, rather than remote.

The foundation of proximate cause rests on the idea of “forseeability”—namely that the responsibility for harm should be based on how an actor’s choices led to that harm. This prevents people from being held liable for damages that fall outside of their foreseeable scope of risk.

Having a greater understanding of causation in a negligence claim is important because as Owens says: “Thousands of people every day are injured or killed in car collisions, slip-and-fall accidents, and myriad other kinds of accidents. While many such incidents are attributable to the negligence of one or more persons, many others result from simple bad luck or the careless behavior of victims themselves.”

Knowing the difference is fundamental in preparing a negligence lawsuit.

Experienced Colorado negligence attorneys at Babcock Law will evaluate your case and determine if it meets the requirements of a negligence claim. So schedule a free consultation today.