What Are the Four Types of Negligence?

In personal injury law, there are four types of negligence: gross negligence, contributory negligence, comparative negligence, and vicarious negligence. Plaintiffs in personal injury cases rely on the legal principle of negligence to establish fault and hold the other party liable for causing the accident and subsequent damages.

The majority of personal injury and accident-related lawsuits are based on the legal theory of negligence. In the eyes of the law, individuals are expected to act according to a standard of care. If they don’t, and someone sustains injuries as a result, they are legally required to compensate the injured person.

What Does It Mean to Be Found Negligent?

Being found negligent in the legal sense means that the responsible party will have to pay the injured victim financial compensation. The ordinary meaning of negligence is “failure to give enough care or attention to something.” For example, you could call someone negligent if he or she forgot to lock up his or her house while going grocery shopping. However, this everyday definition is not specific enough for use in civil lawsuits.

The legal meaning of negligence is much more specific and relies on the concept of “a reasonable person.” A person is found to be negligent if he or she fails to exercise care toward others the way a reasonable or prudent person would in the same circumstances.

The jury generally decides whether a defendant used the level of care and caution a reasonable person would have in the same situation. Consider, for example, a case involving a speeding driver who hits a jaywalking pedestrian. A reasonable person doesn’t exceed the speed limit, so if the driver did so and caused an accident, the jury would hold him or her responsible for any harm caused.

Types of Negligence

There are four types of negligence in personal injury claims:

Gross Negligence

Gross negligence constitutes reckless disregard or extreme indifference for another party’s safety. Unlike other forms of negligence, gross negligence is not a failure to act or simple carelessness. It is a high degree of negligence that embodies a deviation from the ordinary standard of care.

These deliberate and reckless actions cause significant injuries that can impact the victim’s quality of life. A well-crafted lawsuit can take care of the cost of damages, as well as punitive damages as punishment for transgression.

Some mishaps are a result of ordinary negligence. However, a DUI accident can be considered gross negligence. Other common examples of gross negligence include:

• A nurse intentionally ignoring a hospitalized patient in dire need of emergency medical care.
• A surgeon amputating the wrong limb.
• Speeding through an area with heavy pedestrian traffic.
• Staff at a nursing home failing to give residents food and water.
• A construction manager failing to provide adequate fall protection for employees.

Extreme carelessness can increase the amount of monetary compensation to be paid to the affected person in the event of a successful lawsuit.

Contributory Negligence

Contributory negligence is a type of negligence that highlights the plaintiff’s share of responsibility for any injuries he or she sustained. It’s an all-or-nothing approach to liability, and can have a significant impact on the plaintiff’s ability to recover damages.

In states that use contributory negligence in civil cases, a plaintiff could be denied any form of compensation if the defendant can prove that the plaintiff was even 1% responsible for the mishap that resulted in the injuries he or she sustained.

For instance, a bicyclist sues for damages sustained while he or she was hit by a motorist making a right-hand turn. The motorist, who was negligent in not slowing down while making the turn, might use the contributory negligence theory by demonstrating that the plaintiff was using his or her cell phone while cycling.

In this lawsuit, the motorist wouldn’t be required to pay for damages, even if the court found him or her 99% at fault. It is this unfair outcome where the plaintiff gets nothing and the defendant keeps everything that motivated legislators and judges in most states to drop the doctrine of contributory negligence and replace it with comparative negligence.

Comparative Negligence

The majority of states, including Florida, have adopted the concept of comparative negligence. This type of negligence allows the injured party to obtain compensation even if he or she partially contributed to the accident, but the amount recovered is adjusted based on the percentage of his or her fault.

Pure Comparative Negligence

Under the comparative negligence approach, a plaintiff obtains compensation based on the allocation of fault. If, for example, a plaintiff sues someone for negligence and is awarded $30,000 in damages, but he or she is found to have been 40% at fault, he or she would be entitled to 60% of the compensation award, or $18,000.

Modified Comparative Negligence

The modified approach of comparative negligence combines contributory and comparative negligence. A plaintiff is barred from receiving compensation if his or her percentage of fault exceeds the maximum amount set by state law.

In states that adopt 50% comparative negligence, the plaintiff won’t recover compensation if it’s determined that he or she was responsible for at least 50% of the negligence in the accident. If the responsibility is established to be 49% or less, the injured person is eligible to obtain damages in the amount of the other party’s share of the responsibility. The case is dismissed if both parties are found to be 50-50 responsible for the accident.

Modified Comparative Negligence (51%)

Injury cases under this form of comparative negligence are dismissed if the plaintiff is the most at-fault party. That is, the plaintiff is responsible for 51% or more of the accident. If both parties are found to be 50-50 responsible for the accident, the injured party can collect damages.

Vicarious Liability

In some accident cases, victims may sue the people or organization in control of the at-fault party. This could go a long way in helping you secure compensation if the defendant had little money or insurance, or you can’t precisely determine who in the organization was legally responsible.

This form of liability is known as vicarious liability and applies to individuals who are in control of persons who cause harm to victims.

For instance, a company is in control of its workforce. If an employee causes harm to another person while on duty, vicarious liability rules could apply to hold the company liable. Vicarious liability offers plaintiffs more possible respondents in a personal injury case. Generally, victims will file a lawsuit against the person directly liable for hurting them, and other parties are vicariously liable for the losses that occurred.

Common examples of relationships that fall under vicarious liability include:

• Employer-Employee
• Partnership-Partner
• Corporation-Directors and Officers
• Parent-Child

How to Prove Negligence in a Personal Injury Claim

For a claim of negligence to be established, there are four elements that a plaintiff must prove to show that the defendant acted negligently. It’s not enough to only prove some elements. To recover compensation in a civil lawsuit, a plaintiff, or his or her personal injury attorney, must prove all four elements of negligence.

Say, for example, a plaintiff was injured in a slip and fall in the defendant’s hotel. The plaintiff must show that the defendant was responsible for the accident by failing to dry a wet floor or not having a “Wet Floor” sign. He or she must also show that he or she incurred medical expenses as a result of an injury due to the accident.

Here are the elements that victims of negligence must prove:

Duty of Care

The law imposes a duty of care on people while performing acts that could potentially harm others. The duty of care arises when a relationship exists between two people and one of them is required to act with reasonable care toward the other. For example, teachers are tasked with protecting children in their care. Every motorist is required to operate his or her vehicle safely, with respect to other motorists and pedestrians on the road. Employers must provide a conducive work environment for their employees. Manufacturers owe a duty of care to consumers. A doctor owes a duty of care to patients based on medical professional standards.

In some cases, the duty of care owed is higher than the standard. For instance, common carriers (those who transport goods or people for a fee) owe a heightened duty of care to their customers.

Breach of the Duty of Care

Once the duty of care is established, the plaintiff must prove that the defendant breached that duty or failed to act according to the required standard. It must be shown that the defendant failed to act the way a reasonable person would in the same or a similar position.

There’s no set formula for determining whether the duty of care was breached. One aspect that courts consider is if the defendant could foresee the risk of harm to the plaintiff because of his or her conduct or failure to prevent harm. In other words, would an ordinary person have anticipated that his or her conduct could have caused harm to another person? If the answer is yes, the defendant could be found to have acted negligently.

An example of hospital negligence could include a doctor prematurely discharging a patient after surgery when his or her condition has not yet stabilized. If his or her condition worsens or becomes more difficult to treat, necessitating more bills, this may be considered a breach of duty.

Causation

Before a defendant is held liable, the plaintiff has to prove that the defendant’s carelessness or breach of duty caused the plaintiff’s injury. Would the plaintiff have sustained the injuries if the defendant had not acted the way he or she did? If the answer is no, the defendant’s actions caused the harm.

There are two types of causation under this element of negligence:

Cause in Fact

A plaintiff must show that the actual cause of his or her injuries was the defendant’s breach of duty. If it wasn’t for the defendant’s actions, the plaintiff would not have sustained the injuries. For example, if the lack of a “Wet Floor” sign in a retail store caused the plaintiff’s slip and fall accident, the plaintiff will have established cause in fact of injury. 

Proximate Cause

This refers to the foreseeability of the damage or injuries caused by the defendant’s actions. One example is that a defendant’s truck rams into a house and the homeowner is hit by a collapsed ceiling. In this case, the homeowner’s injuries were the result of the collapsed ceiling, not the truck. However, the ceiling only collapsed due to the truck’s impact, making the crash the proximate cause of the injuries.

Proximate cause only includes injuries that the defendant could have predicted and prevented. It does not include any harm that comes to a victim due to unforeseen complications of the accident.

Harm and Damages

The last step involves showing that the plaintiff suffered real harm because of the defendant’s actions. This is then calculated into a dollar amount, which in the legal field is called damages. Determining and recovering damages is achieved by presenting appropriate evidence of monetary losses, as well as pain and suffering the plaintiff has sustained because of his or her injuries.

Damages in civil lawsuits include:

• Past and future medical expenses
• Past and future lost wages
• Property damage
• Pain and suffering
• Disfigurement or physical disability
• Loss of enjoyment of life

If a family member dies as the result of negligence on the part of another person or entity, surviving family members may be able to file a wrongful death lawsuit or survival action. It is best to consult a Florida injury lawyer to determine which type of case to file.

Jim Magazine

James (Jim) Magazine is a Florida Board Certified Civil Trial lawyer who has spent his career helping injured victims. Jim is licensed to practice law in the State of Florida since 1990 and is also admitted to practice at the Appellate level and admitted to the United States Supreme Court.

Years of Experience: More than 30 years
Florida Registration Status: Active
Bar Admissions:
Clearwater Bar Association
West Pasco Bar Association