4 Elements of a Negligence Claim (and more)

Under Colorado law, there are four elements to a claim for negligence:

  1. The existence of a legal duty to the plaintiff;
  2. The defendant breached that duty;
  3. The plaintiff was injured; and,
  4. The defendant’s breach of duty caused the injury.

Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1015 (Colo. 2006). For a plaintiff to succeed at trial, each element must be proven by a preponderance of the evidence (more likely than not) and then the plaintiff must prove the amount of their damages.

Read on to learn all about the elements of negligence as well as related issues like foreseeability, reasonableness, and the “standard of care.”


4 Elements of Negligence

(1) Duty

In plain terms, the “duty” element requires that the defendant owe a legal duty to the plaintiff. For example, you generally do not owe a duty to be friendly to others; however, you do owe a duty to act with reasonable care so that you do not physically injure others.


(2) Causation

The “causation” element generally relates to whether the defendant’s actions hurt the plaintiff. Many times, it is not clear about who or what injured the plaintiff. Sometimes it is clear that the defendant injured the plaintiff, but it is not all that clear that the plaintiff’s injuries were caused by the defendant.


(3) Breach

Breach is simple to explain but difficult to prove. If the defendant owed a duty and did not fulfill that duty, then he or she is in breach.


(4) Damages

Finally, the element of “damages” concerns the amount of monetary loss the plaintiff has suffered. This element is almost always in dispute with defendants arguing that the plaintiff suffered no injury or suffered minor injuries and the plaintiff arguing the opposite.


Basic & Useful Definitions

  • What is negligence? Negligence is when a person falls “below the standard of care” by failing to act in the way that a “reasonably prudent person would” under the “same or similar circumstances.” In general terms, negligence is when a person falls below the standard that society determines to be “reasonable” under the circumstances.
  • The dictionary that attorneys use to define terms, Black’s Law Dictionary, defines negligence as “the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.”
  • What is gross negligence? The term “gross negligence,” is a type of negligence where the defendant lacks “even slight diligence or care.” 
  • In some instances, the law will presume that someone is negligent under certain circumstances. This is called “negligence per se” and is defined as “negligence established as a matter of law,” or negligence arising “from a statutory violation.”
  • What is the “standard of care?” The standard of care is the “degree” of care that a person should exercise. Some situations call for higher or lower standards of care, depending on the circumstances. 
  • What is the difference between negligence and torts? Negligence is the primary and most-well-known claim related to an area of law called “tort law.” Tort law is the type of law and negligence is a type of legal claim or cause of action. In law school, one of the very first classes that any student will take is called “torts.” Other tort claims include battery, assault, negligent/intentional infliction of emotional distress, fraud, misrepresentation, and many others.


Contributory and Comparative Negligence

When a plaintiff asserting a claim for negligence is also negligent themselves, the law refers to this as “contributory negligence” or “comparative negligence.”

    • What is contributory negligence? “Contributory negligence” is defined as a “plaintiff’s own negligence that played a part in causing the plaintiff’s injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages.”
    • What is comparative negligence? Comparative negligence is defined as a “plaintiff’s own negligence that proportionally reduces the damages recoverable from a defendant.”

Many cases involve some level of contributory or comparitive negligence as it is common for defendants to argue that the plaintiff brought the injuries upon themselves or acted in a way that made the harm more likely.

What is “Reasonable Care?”

Colorado’s pattern jury instructions define “reasonable care” as “that degree of care which a reasonably careful person would use under the same or similar circumstances.” Note that it is not defined as “any” person, it is defined as a “reasonably careful” person. This is often the most difficult and contentious issue that the jury will decide at trial: whether the defendant acted “reasonably” and with “reasonable care.”

What About Foreseeability? Is it a Requirement?

A defendant is only liable for negligence if their actions resulted in a “foreseeable” injury. Under Colorado law, an injury is foreseeable “if a reasonably careful person, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff’s situation might result from the defendant’s conduct.” It is not the precise injury that the plaintiff suffered that needs to be foreseeable, it is enough that an injury is foreseeable. In law school, students often study a case called Palsgraf v. Long Island Railroad Co., which is a case out of New York that was the first to thoroughly analyze what sorts of things are foreseeable or unforeseeable. The same principles discussed in this case are still used today in Colorado. For example, the Colorado Court of Appeals recently cited Palsgraf in a 2015 decision, noting that it is “the seminal tort case”:

The seminal tort case of Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 162 N.E. 99, 101 (1928), similarly holds that liability for negligence is limited to reasonably foreseeable injuries: “[i]f the harm was not willful, [the plaintiff] must show that the act as to him [or her] had possibilities of danger so many and apparent as to entitle him [or her] to be protected against the doing of it.” Because in Palsgraf “[n]othing in the situation gave notice” that the actor’s conduct “had in it the potency of peril to persons” in the plaintiff’s position, the plaintiff could not recover for injuries she suffered that had resulted from the chain of events initiated by the actor’s conduct. Id. at 99.

Boulders at Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 52.


Damages Arising from Negligence Claims

A plaintiff alleging a negligence claim is entitled to “compensatory damages.” Compensatory damages include the amount of money that it takes to make the plaintiff “whole” – i.e. to remedy or fix the damage caused by the defendant’s conduct. Sometimes calculating what it takes to correct a wrong is easy and other times it is an impossibly difficult task. However, Colorado juries are specifically instructed that “difficulty or uncertainty in determining the precise amount of any damages does not prevent you from deciding an amount” and that the jury “should use its best judgment based on the evidence.” See, e.g., Colo. Jury Instr., Civil 5:6. Plaintiffs may also be entitled to other types of damages such as punitive damages; however, those sorts of damages are rarer.


What is the Statute of Limitations for Negligence Claims?

The statute of limitations for negligence claims in Colorado is two yearsSee C.R.S. § 13-80-102(1); see also Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (“In Colorado, the statute of limitations bars negligence actions brought more than two years after the action accrues.”). “To determine when an action accrues, the General Assembly has adopted a form of the ‘discovery rule,’ which states that an action accrues ‘on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.’” Goff, 91 P.3d at 1053 (emphasis added); see also C.R.S. § 13-80-108(1).


Learn all about the elements of claims for unjust enrichment and breach of contract.

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