Do You Understand What is Needed to Prove Negligence?

The Negligence Tort

Adapted from Zalma on Insurance Claims Part 105 Second Edition: A Comprehensive Review of the law and Practicalities of Property, Casualty and Liability Insurance Claims now available  here.

A “tort” is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers. A tort exists when the tortfeasor commits against another person an act that causes damage. In short, torts protect people from wrongful conduct by others and give claimants a right to sue for compensation or possibly an injunction to restrain the conduct. There are various types of torts. Those that will involve a liability insurance policy and that a claims adjuster will meet most often are described below.


Negligence is the failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances. Negligence is always accidental. It is different from intentional torts like assault, battery or trespass or from crimes.

The elements of the tort of negligence are:

  • a duty;
  • breach of that duty by want of ordinary care; and
  • the breach of the duty causes harm to a person or the property of a person.
  • If an injury is caused by something owned or controlled by the supposedly negligent party, while how the accident actually occurred is not known (like a ton of bricks falls from a construction job), negligence can be found based on the doctrine of res ipsa loquitor (Latin for “the thing speaks for itself”).


The basic duty of care is set forth in California Civil Code section 1714 (a), which provides in part:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

The duty of care is a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person’s actions do not meet this standard of care, then the acts are considered a breach of the duty of care, negligent, and any damages resulting may be claimed in a lawsuit for negligence.

In order to establish the tort or a defense to the tort it must first be established whether there is a duty. The duty may be the common, general duty to so use your property and person as to not cause damage to others. This general duty is part of every relationship. The duty may be a special duty because of the relationship of the parties¾for example, if the people involved are guardians, trustees, or employers. If there is no duty, there can be no breach and no negligence.

A duty of care will not be held to exist even as to foreseeable injuries where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability. [Regents of the Univ. of Cal. v. Superior Court of L. A. Cnty., 413 P.3d 656, 230 Cal.Rptr.3d 415, 4 Cal.5th 607 (Cal., 2018)]

Public policy creating a duty is based on state and federal statutes and the common law. A statute reflecting public policy may create a duty when a plaintiff is within the class of persons to be protected by the statute and the harm that occurred is the risk that the statute sought to protect against. Unlike duties based on special relationships, duties based on public policy do not necessarily require preexisting relationships. Rather, the statute itself creates a legal relationship between the parties giving rise to a duty. [Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 42, 796 P.2d 470, 474 (1990) and in re Quiroz, 416 P.3d 824 (Ariz., 2018)]


The second step is to determine whether the duty was breached. Did the person insured do something that was contrary to the duty? For example, did he or she drop a banana peel in front of a person? Did he or she spill a drink in a store aisle and neglect to clean it up? Did the insured sell an electric machine that he or she knew was broken and would give a shock to whoever used it? Had the insured left a well open in the backyard? If there is no breach, there is no liability. A breach of duty is the failure to perform a duty that a person is legally obligated to perform.

The question of a breach of duty is one of fact for the jury to determine. [Pyle v. Layton, 189 S.W.3d 679, 684–85 (Mo.App.2006); Hale v. Wait, 364 S.W.3d 720 (Mo. App., 2012)]

Of course, a claim of breach of duty is duplicative in a breach of contract cause of action because a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. [Clark–Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653, 516 N.E.2d 190).  Junger v. John V. Dinan Assocs., Inc., 164 A.D.3d 1428, 84 N.Y.S.3d 574 (N.Y. App. Div., 2018)] An attempt to turn a garden-variety contract cause of action against a defendant into a tort-based breach of duty of loyalty cause of action fails as a matter of law. [Amn Healthcare, Inc. v. Aya Healthcare Servs., Inc., 28 Cal.App.5th 923, 239 Cal.Rptr.3d 577 (Cal. App., 2018)]


Third, it must be determined if the breach was the proximate or legal cause of the injury.

A cause is a “proximate cause” if “the defendant’s conduct was a substantial factor in bringing about the injury.” [BAJI (California’s Pattern Jury Instructions) 3.76; Mitchell v. Gonzales, 54 Cal. 3d 1041 (1991).] In Mitchell, the Supreme Court noted that the “substantial factor” test contained within it the “but for” test—that is, “but for the actions of the defendant the plaintiff would not have been injured—and also substantially resolved the problem of “independent causes.” “A proximate cause of injury, loss or harm is a cause which, in natural and continuous sequence, produces the injury, loss or harm and without which the injury, loss or harm would not have occurred.” [BAJI No. 3.75]. If proximate cause cannot be proved, there is no liability.

A plaintiff is entitled to recover damages in a negligence action if he or she demonstrates that a defendant’s negligence was a proximate cause of the plaintiff’s injuries, i.e., that the defendant’s negligence was one, not necessarily the only, substantial factor in causing the injuries.

A plaintiff’s right of recovery arises on his or her showing that the defendant was negligent and that the defendant’s negligence was a proximate cause of the plaintiff’s injuries, and any comparative fault on the plaintiff’s part will merely diminish the damages award. Under the present rule reflected in the decisions of the First and Second Departments, a plaintiff seeking partial summary judgment on the issue of the defendant’s liability is required to prove her freedom from comparative fault.

If an intervening cause exists, there is no liability. The adjuster should apply the “but for” test for a start. The adjuster should then ask if the action or inaction of someone else intervened after the action of the insured to relieve the insured of liability. If there is an intervening cause the “but for” test still applies—but for the action or inaction of the intervening act would the plaintiff have been injured?

This could apply to a simple claim where a postman trips and falls over a rake left in your walk on his way to your mailbox. To determine if there is tort liability you must determine if you left the rake on the walk. If you conclude you did and but for your action he would not have been injured, proximate cause can be proved to your detriment. If it was your gardener who left the rake but you failed to pick it up, again proximate cause can be proved to your detriment because but for your lack of action he would not have been injured. On the other hand, if you left the rake on the lawn and the gardener moved it to the walk without your knowledge, the actions of the gardener may be an intervening cause that may be a defense to your liability.

Another question to ask is if negligence per se establishes liability. If the evidence establishes that the plaintiff’s or defendant’s violation of a statute or ordinance proximately caused the injury and no excuse or justification for the violation is shown by the evidence, responsibility may be fixed upon the violator without other proof of failure to exercise due care. If a statute is violated and that violation is the proximate cause of an injury, the “duty” element is presumed established.

The conflation of loss causation with proximate cause appears to result, in many cases, from the conflation of each, in turn, with foreseeability. But, where foreseeability is to some extent relevant to proximate cause. Foreseeability, on the other hand, goes partly to how strong or weak, near or remote, the court takes the causal connection to be and ultimately, then, to the question of whether the court wishes to hold those speeding liable for an increased likelihood of falling branches damaging passing trolley cars. The unforeseeability of a particular risk, which may indicate the relative weakness of a causal connection, is among the factors courts consider under “proximate cause,” but a decision not to impose liability due to lack of proximity does not negate the presence, in fact, of causal tendency. It is enough to say that negligence is tested by foresight but proximate cause is determined by hindsight. [Dellwo v. Pearson, 259 Minn. 452, 456, 107 N.W.2d 859 (1961); Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160 (2nd Cir., 2015)]

This, the fifth, in aseries of ten books is the latest addition to Barry Zalma’s insurance claims series of books and articles that will form the most thorough, up-to-date, expert-authored insurance claims guide available today. Written by nationally-renowned insurance coverage expert Barry Zalma, a semi-retired insurance coverage attorney, consultant, expert witness and blogger, Zalma on Insurance Claims provides in-depth explanations, analysis, examples, and detailed discussion of:•Property insurance claims;•Third-party liability claims;•Casualty claims; and•Insurance FraudThorough, yet practical, this series of books form the ideal guide for any professional who works in or frequently interacts with the insurance industry. Claims professionals, risk managers, producers, underwriters, attorneys (both plaintiff and defense), and business owners will benefit greatly from the ten volume guide. It is also the perfect resource for insurance educators, trainers, and students whose role requires an understanding of insurance law. The author has provided checklists, sample procedures, form letters, tables and information and references to model statutes, state statutes, administrative regulations, and requirements of insurance departments nationwide. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. This, the fifth volume of Zalma on Insurance Claims and includes materials concerning:1.Investigation – Liability2.Claims Made and Reported Policies3.The Notice Prejudice Rule.4.Types of Torts5.The Liability Claims File6.Discovery of the Insurance Claims File7.Tests for Determining Duty to Defend8.Appendices – forms for the claims personWhen read with Insurance 101, Insurance 102, Insurance 103 and 104, this volume works to take the reader to a complete understanding of insurance and insurance claims.

Adapted from Zalma on Insurance Claims Part 105 Second Edition: A Comprehensive Review of the law and Practicalities of Property, Casualty and Liability Insurance Claims now available  here.


About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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