What is Negligence Litigation?

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  • Written By: Dale Marshall
  • Edited By: Kristen Osborne
  • Last Modified Date: 18 March 2020
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Negligence litigation is the process of filing a lawsuit where the plaintiff, or the person filing the suit, alleges that the defendant has acted negligently, causing harm to the plaintiff. Negligence litigation nearly always seeks monetary damages from the defendant as reimbursement of expenses incurred in repairing harm. Negligence itself is the failure to act diligently, or to exercise proper care to avoid injury to others. For example, a homeowner who fails to shovel the snowy walkway in front of his home can be sued for negligence by someone who slips and falls. The success of the lawsuit will depend on whether that person can prove that the slip and fall was due to the homeowner’s negligence in not shoveling, and that some harm resulted.

Negligence is a tort — that is, a cause of action by which one party may sue another, usually for damages. There are many types of negligence. For example, a surgical team that transplants an organ into a patient without first checking the compatibility of the donor’s and recipient’s blood types has acted negligently, and may be sued by the patient or her family. Likewise, a restaurant that serves a drink in a cracked glass has acted negligently, and can be sued by the customer.


Negligence litigation is relatively easy to initiate, but the plaintiff must prove each of several elements of the case, depending on the jurisdiction and the nature of the case itself. In order for a negligence lawsuit to be successful, all elements must be proven; if even one is not satisfactorily proved, the plaintiff cannot prevail. There are generally four elements that must be proven, the first of which is that the defendant actually had a duty to act with diligence, sometimes called the duty of care, and the second of which is that the defendant breached that duty. This is not absolute, but determined by a standard of what a reasonable person would do under the circumstances. In both examples above, the duty of care and the fact of the breach of that duty would relatively easily be proven.

The next two elements of proving a negligence case, causation and damages, are not as easy to prove. Proving the causation element requires that the plaintiff show that he was harmed as a result of the defendant’s negligence. Damages is that section of negligence litigation where a value is placed on the defendant’s negligence. If physical injury was caused, for instance, then the cost of medical treatment and follow-up care would be part of the actual damages claimed. Similarly, if property damage occurred, the cost of repairing the damage would constitute actual damages. Many jurisdictions permit plaintiffs to sue for other damages as well, including pain and suffering. Punitive damages are another type of damages, assessed against a defendant when the negligence is especially egregious.

In the earlier examples, the surgical patient or her family would likely be able to prove all four elements of negligence, but the restaurant patron might not be able to, especially if the cracked glass was discovered before the patron actually drank from it. Most jurisdictions don’t permit pain and suffering damages or punitive damages unless they’re “parasitic” — that is, there must be actual damages before other damages can be considered. An exception is California, where plaintiffs may claim pain and suffering for witnessing negligent injury to others, even if they themselves were not physically harmed.

Negligence litigation in the United States is controversial. Critics claim that jury awards are out of proportion to actual damages caused and are based not on business factors and logic, but appeals to emotion fabricated by clever trial lawyers. They hold that the American system of requiring each side to pay its own costs encourages the bringing of specious suits that defendants will settle because it’s less costly than going to court.

Proponents of the status quo, on the other hand, claim that requiring the loser to pay the winner’s legal costs will stifle the ability of the common man to get his day in court when challenging large defendants with extensive resources. They also point out that the overwhelming majority of jury awards in negligence cases are reasonable, and only a handful — generally of particularly egregious cases of neglect — result in the enormous jury awards that generate excited headlines. Furthermore, they point out that those awards are rarely, if ever, actually paid out. They’re significantly reduced on appeal, and the amounts finally paid out are in line with comparable cases.


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