What is negligence?

An Introduction For Crash Victims

When you or a loved one gets into a car crash, naturally the first thing you hope is that everyone is okay. But even if you are fine, you may have injuries or car damage for which you need compensated. In no-fault states, you often don’t have to prove negligence on the part of another driver to get compensation. But in at-fault states, negligence becomes more important. So you want to at least have an idea of what this concept is before speaking to an attorney.

Note: This website provides general information, not legal advice. Contact a licensed attorney in your state if you or someone you know has been involved in any kind of accident. Nothing in this site is meant to imply any sort of legal relationship or advice. Click here for full LEGAL DISCLAIMER.

Note that, as of 2014, there are 12 states that have some form of no-fault insurance, according to eCoverage.com. You can click here and see if the state where your accident occurred is on the list. But even if it is, negligence could be relevant in certain situations in these states. So you should still get familiar with this concept before consulting an attorney.

In a nutshell, negligence is fault. Legally, it is the failure to act as a reasonable, prudent person would under the same or similar circumstances. The standard is the prudence of a typical, ordinary person. In terms of car crashes, negligence could be reckless or drunk driving. But it could also be careless driving. An unlicensed driver is also arguably negligent. But as you can see below, negligence is only one part of the legal issue in accidents. Other elements must be met before you can successfully sue someone and get damages. You can’t just point your finger and say someone is a bad person. As described below, no one is liable for an accident unless the four tort elements are met.

Note On Liability Insurance: When someone else causes an accident and hurts you or your property, you certainly hope the car or person is covered by liability insurance. So if you settle or go to trial, the other party will typically be the insurance company and not the actual negligent person that you deal with. If the car is not insured, then you may have to personally sue the person, which is difficult because these types of people quite often have no money even if you win the case. As a result, you can protect yourself by getting other types of insurance on your policy, such as uninsured motorist coverage for personal injury and comprehensive and collision coverage for damage to your vehicle.

Tort Elements and Crashes:

A tort is a wrong done to someone for which there is a legal remedy. So when you have a personal injury or property damage from a traffic accident, you may have a tort claim. If your lawyer thinks you have a legal claim, then he or she may file a lawsuit based on the tort committed against you. The defendant, if liable, is a “tortfeasor.” However, fault is only one part of the equation.

To succeed in a lawsuit against someone after an accident, you usually need to prove four things: a duty, a breach of that duty, causation, and damages. Negligence is the standard to determine whether someone breached that duty. It is not enough, by itself, to show that another driver or individual was negligent. Except in no-fault states, you also usually need to show these other 3 elements. Even under no-fault insurance schemes, you may have to prove negligence on the part of another person to get certain damages, such as pain and suffering.


A person driving on the road has the duty to act reasonably to avoid injuring or killing others in his or her own car or other vehicles. So drivers do have this duty, but others sometimes have this duty, as well. One example of another party sometimes having a duty is the company who hired the driver. If a truck driver negligently causes an accident that hurts you, you may often sue the company he drives for. This is possible because the driver-employee is an agent of the company. Through the concept of respondeat superior, an employer is sometimes responsible for the actions of the employee. This is a very general rule with lots of exceptions. For example, if the driver is merely an independent contractor and not an employee, the company is generally not responsible.

Accident victims would also love to sue the state for various unsafe road conditions, such as crashes in construction areas or incidents like where the snow plow did a poor job of removing the snow. Generally, though, governments have immunity from civil lawsuits when it comes to accidents on the road. Imagine the lawsuits that would ensue if you could sue a state over a pothole or whatever. Every city and state would likely go bankrupt before long. So you generally need to look to another driver’s actions in jurisdictions where negligence is a requirement for recovery.

Car manufacturers have a duty to make safe automobiles. See the “Products Liability” section below for more information on this type of negligence.


Breach generally refers to the negligence part of a tort case. While things such as careless driving are typically accidental, intentional acts are also a breach. Occasionally, someone will ram another car during road rage or some other act. So whether it was an accident or intentional, you have a breach if the person failed to exercise due care. And as stated above, the general standard is that all drivers must act as a reasonable, prudent person would under the circumstances. In terms of crashes, that essentially means careful driving and following traffic rules.

Here are some examples of actions that could (not necessarily 100% of the time) constitute negligent operation of a motor vehicle or even a bicycle or kickboard:

1. Drunk driving
2. Distracted driving, such as using a phone or texting, eating, looking at people in the back seat, or reaching for things while driving
3. Speeding
4. Driving under the influence of drugs
5. Falling asleep at the wheel
6. Failure to yield the right of way
7. Reckless driving
8. Careless driving, such as changing lanes without carefully looking for other cars
9. Failure to maintain a safe vehicle

There are a million exceptions in the law. One example in this case would be someone who passed out due to a medical emergency. Such person might not be negligent at all. It depends on his or her medical history, such as how many times the same thing has happened before.


Even some of the worst would-be defendants are not going to be liable for your personal injuries and property damage sustained in a car accident. That is because, in addition to negligence, you must actually prove that the person caused the incident. Note that a crash can have multiple causes. To prove causation, you need to show that the person’s action was one of the causes, not the entire cause. However, if the person is only 25% responsible, the damages he has to pay would generally be limited to that. Nonetheless, causation is proven even if you show that the other driver was only one of many causes of an accident.


Let’s say that you accidentally cross the center line and collide with a drunk driver’s car. Well, in this case, you may want to hold the drunk driver responsible simply because he was drunk. But that’s generally not how the law works. Yes, the drunk driver was arguably negligent for driving in that mental condition. He may even be arrested and convicted of a crime. However, you are the one who caused the accident, not him. So as a general rule, you are unlikely to be successful in proving that such a person is liable.

Like the other tort elements, causation has so many exceptions, that you will always have to consult with a lawyer to see how strong your case is.


When it comes to automobile crashes, you can sue negligent parties for both personal injury and property damage, such as repairs for your car. Medical bills apply, including things such as physical therapy and rehab. But pain and suffering is another type of damage you can sue for. In some cases, you can even sue for the loss of consortium. An example of this is the inability to have relations with your spouse due to physical injury. In the case of wrongful death, you can get compensation for the loss of companionship.

In some cases, you might get punitive damages. These are damages assessed against particularly bad actors or repeat offenders. An example would be a drunk driver with multiple DUI convictions or a transportation company with a bad safety record that caused yet another accident. There is never a guarantee that you will get punitive damages, though. Subject to statutory limits and appellate reduction, punitive damages can go into the millions of dollars in some cases. However, that is not the typical award. So don’t expect to be getting rich off a lawsuit. Despite what some people say, those huge verdicts don’t happen on a daily basis. The vast majority of cases settle out of court with no trial or verdict.

Click here for additional information on general, special, and punitive damages.

Other Considerations:

Products Liability:

A big thing in car accidents in addition to a driver’s negligence is products liability. Sometimes, you can successfully sue the car manufacturer for a product defect. If you think Ford or GM failed to make a safe gear shift or something like that, then you might be able to sue that manufacturer if that is what caused your accident. These are very complicated cases. If you think your crash was caused by a defective car part or the failure to include a part that would have made the car safer, then you should contact a products liability attorney. Some lawyers or firms specialize in this area. Your local personal injury attorney might not have experience in this area. But he or she will likely be able to refer you to a products liability specialist.

Who can sue?

Generally, only the person who is actually injured or has property damage can sue. This is the concept of “standing.” However, if one of your family members dies, you may be able to file a “wrongful death” lawsuit. Who is eligible to file varies from state to state, so you need to talk to a local attorney. Wrongful death cases also generally depend on negligence and the elements described above. The difference is that the victim died, so the plaintiff is a family member or members instead of an actual victim.

Statute Of Limitations:

If you are interested in filing a lawsuit, then you must contact a lawyer as soon as possible. Some states require you to file a personal injury lawsuit within 2 years or even less after a crash occurs. In some harsh situations, you must file a notice of intent to sue within 60 days or so of an accident. This means you must immediately talk to an attorney and discuss your options. If the statute of limitations runs before you file suit, you are simply out of luck no matter how negligent the other party was in the crash.

Is negligence always required to get damages?

Definitely not. In no-fault states, you generally don’t have to prove any negligence at all. And depending on what insurance coverage you have, your own insurance company might reimburse you for personal injury or property damage. Examples are collision and comprehensive coverage and medical payments coverage. However, these might or might not pay you if you were negligent, depending on the terms and conditions of your policy. Regardless of whether you are in a no-fault or at-fault state, have your lawyer look at your insurance policy and the policies of those involved in the accident so you can determine your options.

Negotiating and Settling Without A Lawyer:

It should probably just be illegal on its face for an insurance company to negotiate a settlement after a crash with a person who has not at least consulted with an attorney. But the reality is, laws often exist to protect insurance companies instead of the consumer. If you attempt to negotiate a settlement by yourself with an insurance company, be aware that they may try to pay nothing at all or pay as little as possible. Only a trained and experienced attorney will be able to determine all of your damages. So the general advice is to NEVER negotiate with an insurance company by yourself. Have your lawyer do it for you if you have a lawyer who is interested in your case.

At the very least, get a free case evaluation on your accident from a personal injury attorney. If the attorney believes you are entitled to damages, then he or she can negotiate or file a lawsuit on your behalf on a contingency-fee basis. This means you don’t pay anything out of pocket for legal fees related to car crashes. Instead, the lawyer will take a percentage of the money you receive in a settlement or after a verdict. Of course, this depends on the particular lawyer and is based on the specific fee agreement.

Comparative Negligence:

Sometimes, both you and the other driver are negligent and partially responsible for a crash. In that case, whether you can recover depends on the negligence system in the state where the accident occurred. In a few states (but only about 5), contributory negligence is a harsh rule meaning that you cannot recover damages if you were even 1% negligent in the accident. Most other states have one of various “comparative negligence” systems. That means that you can still recover if you were partially negligent. But you would generally receive less than 100% of your damages. For example, if a jury found you to be 25 percent responsible, you would generally recover 75 percent of your damages. However, this is just the general rule. In some states, there is a modified system that will bar recovery if you are 50% or more than 50% responsible. The percentage may be different than this. Check with your attorney for the local rule.

Property Damage Other Than Vehicles:

Damage or destruction to cars is only one type of damage for which you might be able to get recovery. For example, let’s say you are a homeowner, and someone crashes into your house. Hopefully, you are already covered by home insurance. But even if you aren’t in this type of accident, you might be able to sue the driver if he or she was negligent (keeping in mind negligence is generally not a required showing in no-fault states). Or if someone else caused the crash, you could sue that person. But keep in mind that if the other person’s insurance policy does not cover damage to your house, you may be forced to sue the driver on an individual basis.

Damage To Your Own Vehicle:

You will want to make sure your insurance policy has collision coverage. That way, you can get money for repairs or replacement if you crash into something. But be aware that, in many cases, you will not be able to recover if you negligently caused the crash. It depends on the terms and conditions set out in your insurance policy.

An uninsured person caused the accident. What can I do?

Some insurance policies will kick in and pay for your own injuries and other damages when the person who negligently caused the crash does not have insurance. This will depend on what is covered by your own insurance policy, though. The state may or may not require such a provision in all policies. Examples are uninsured motorist coverage, underinsured motorist coverage, and uninsured motorist property damage coverage. You can also just individually sue anyone who causes an accident. The problem with that is most people are not rich and would not have the ability to pay even if you win a lawsuit.


Whether you get paid or have to pay after a car crash often depends on who was negligent, if anyone. Negligence essentially means that a person caused an accident by driving in an unreasonable manner. You can also sometimes sue a driver’s employer or even the car manufacturer if you are injured or damage your vehicle. Above all else, though, realize that you must consult a local licensed attorney to determine all your rights and options. You don’t have to have money to get such a lawyer, as most personal injury attorneys give free case evaluations and work on a contingency-fee basis. Do this as soon as possible to avoid being barred by the statute of limitations. And never negotiate by yourself with an insurance company.

Note: This is NOT a comprehensive overview of negligence in traffic accidents and other crashes. Entire books are filled with this topic. And then there are more books on every subtopic. Always consult a local licensed attorney for actual legal advice. This is general information only. Get with a lawyer to discuss all your options before making any legal decisions.

4 thoughts on “What is negligence?”

  1. A CORRECTION IN SPELLING OF A LAST NAME. Sleepy Eye, MN. March 7, 2014. I am a victims mother and would appreciate it if you could change CALEB QUESENBERRY’s spelling. THERE IS NO “I” in the spelling. QUESENBERRY, CALEB.

  2. Hello Mr. Boyd,
    You did a blog on a case 09/19/2015 Craig S Howard, i just wanted you to know that as of this date no charges or arrest has been made.

  3. My ex husband Johnny Lee Ben nett, father to my two daughters was the man in your Arkansas article. Even his sister believes there were inconsistencies about the accident story.

Leave a Reply