800-882-4410

Negligence refers to a cause of action where a plaintiff/claimant may file a civil case/claim against a defendant for damages allegedly caused by the defendant. In order to establish a case/claim for negligence a plaintiff/claimant must generally prove each of these four elements:

  1. There was a duty owed by the defendant to the plaintiff/claimant to conform to a certain standard of conduct/care
  2. The defendant breached that duty of conduct/care
  3. The breach of duty was both the actual cause and the proximate cause of the damage
  4. There is an actual, measurable, and provable monetary loss related to the damage

What is the Standard of Care?

The standard of care used in normal negligence cases is that of the reasonably prudent person. It is an objective view. In other words, the question is not whether the defendant thought he/she was acting reasonably, but whether an ordinary person on the street would have deemed that reasonable.

For professional service providers, the standard of care is measured very differently and presumes a higher duty of care based on the expertise of the service provider. This greater duty is often based on specific licensing and/or regulatory statutes or rules which require professionals to meet a specific level of conduct/care. For example, a real estate appraiser must typically comply with the Uniform Standards of Professional Appraisal Practice (USPAP).

What is the Difference Between Actual and Proximate Cause?

In a negligence action, it should be relatively easy to determine the presence of (1) a duty to the plaintiff/claimant, (2) a breach of that duty, and (3) actual damages.

The big question remaining is to establish causation. In a negligence action, the plaintiff must definitively prove the defendant was both the proximate and actual cause of the injury. The definition of actual cause is “if not for the action by defendant, the injury would not have occurred.” It is easier to think of this as the “but for” test. For example, “but for Bill (a home inspector) missing evidence of a roof leak, the ceiling in the master bedroom would not have been damaged.” Here missing the roof leak was the actual cause for the damages incurred.

However, not only does the plaintiff/claimant need to prove the “but for” test for actual cause, but the plaintiff/claimant must also prove the actions (or failure to act) are the proximate or legal cause for the damages incurred. In order for the proximate cause to be established, the defendant’s actions must have been reasonably foreseeable.

Courts are reluctant to find a defendant liable for negligence if his/her actions, even though they were the actual cause, were interrupted by superseding, unforeseeable actions. For example, if a severe storm occurred after Bill’s inspection, the wind and rain during the storm may be a superseding cause of the damages to the bedroom ceiling. This is because, even though Bill may have been negligent in missing evidence of a rook leak, the severe storm may be an unforeseeable and intervening event and the actual cause of the leak.

If a plaintiff/claimant has met the aforementioned elements of negligence, then a suit/claim for damages may be successful.