Negligence: How a Court Determines Who’s At Fault

Woman standing in front of a courtroom, holding a piece of paper

There’s no black and white way a court determines who’s at fault in a negligence case. Every case is different, and the court will need to take a look into four key elements of the negligence claim. A negligence case falls under tort law, a tort being “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” This boils down to an injury that occurred because of another’s carelessness. We’ll dive into the four elements of determining negligence here:


In any negligence case, the first step is to establish that the parties involved had a duty of care to the plaintiff. For example, according to the American Bar Association, “A driver has a duty to use reasonable care to avoid injuring anyone he or she meets on the road. If a driver fails to use reasonable care and as a result of that failure injures you, then the driver is responsible (liable) to you for those injuries.”

A duty of care does not only apply to drivers but can cover businesses, cities, and individuals. A doctor owes a certain duty of care to their patients that they won’t botch a surgery, a city owes a duty of care to its residents that they won’t fall down into an unsecured sewer grate, a business owes a duty of care to its customers that they won’t slip and fall on a known, yet unmarked, puddle of leaking water on a slippery surface.


The next step in determining whether negligence occurred is identifying if there was a breach in the duty of care. After a certain duty of care is determined, the plaintiff can argue that the accident or injury would not have happened if the other party upheld their responsibilities.

Following our same examples from above, perhaps a doctor showed up drunk to surgery and botched the job. Or perhaps the city knew that construction workers would be moving and replacing sidewalk sewer grates, but left no signs or caution tape to avoid someone tripping and falling on the sidewalk. And perhaps that business owner knew they had sprung a leak, were waiting on someone to fix it but took no care to wipe up the puddle or place out a wet floor sign. All of these examples may be considered a breach of their care of duty, and they did not act with a high level of care to their patients, their citizens, or their customers.


Once a duty of care and a breach of care has been determined, the causation part comes into play. The plaintiff must be able to prove that the harm or injuries they suffered were in direct causation of the breach of duty of care.

For example, the patient must be able to prove they had botched surgery because their doctor was drunk. Or the pedestrian would need to prove they broke their ankle after tripping on the sewer grate.

This may sometimes sound like the ‘easiest’ part of a negligence case, but it can be quite difficult at times to prove that an injury occurred solely because of negligence. Having a skilled, experienced lawyer on your side can help your case.

Damages & Harm

The last piece of a negligence case is the injury. The plaintiff must have incurred some actual damage. Damages and harm can happen either to an individual, a group of individuals, or harm to property. Typically economic damages will not be considered, but emotional distress can be addressed during a negligence case. Damages and harm can cover pain and suffering, medical bills, and potentially a loss of income.

If you or someone you know was recently injured and you believe it may have been because of another’s negligence, contact Loscalzo & Loscalzo, P.C. at (646) 846-4776 to discuss your case with one of our personal injury attorneys today.