Four Elements Of Negligence

The Four (or Five) Elements of Negligence

Introduction

Wikipedia defines Negligence as “a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness of another.”
According to Elements of a Negligence Case “injury.findlaw.com, “when someone acts in a careless way and causes an injury to another person, under the legal principle of ‘negligence’ the careless person will be legally liable for any resulting harm. “

When an injured person (plaintiff) believes that his or her injury was caused by the carelessness of another, the burden of proof is on him or her to prove the following four (or five) elements of negligence: …show more content…
If a person is injured because of the negligent action or inaction of the ‘relationship’, that is a breach of the owed duty. For example, a physician examination room has an uneven floor tile due to water damage months before. An elderly patient, while waiting for the physician to come into the room, stands from the chair to get a tissue, trips over the uneven tile and falls sustaining a hip fracture. Accidents happen-right? But after careful investigation it is discovered that the physician knew about the tile and neglected to have it replaced. Now there is an injury due to the inaction of the other party in the relationship. This is a breach of duty. Another example would be a person presenting to the local hospital’s emergency department complaining of chest pain and dyspnea but not immediately triaged because he/she was known as a person who frequented the emergency departments wanting pain medication. This person is told to wait in the waiting room and subsequently collapses in cardiac arrest. This is a breach of implied duty since the patient signed into the emergency department for care and was not triaged according to Standards of Care for the symptoms …show more content…
This is where the concept of the fifth element of negligence comes into play. There is Actual Causation and Proximate Causation.
Actual causation (cause in fact) alleges that if a party was not negligent, an injury would not have occurred. This is the But For clause. (But for the negligence of one, there would be no injury to another). There is no supposition or gray area for a Cause in Fact Injury.
Negligence = Injury.
Proximate causation is not as black and white. The defendant party had to have the foresight that if A was done, or not done, then there was a possibility that B could occur. For example: A 40 year old mother of 2 children ages 10 and 8 is scheduled for an elective cholecystectomy. She has a history of mild hypertension and mild hyperlipidemia. She does not smoke or drink alcohol. She has been sedentary for about 2 weeks due to abdominal pain but has been cleared for surgery. During the operation, a Sequential Compression Device (SCD) was in use as is Standard of Care. Two hours postoperatively she began to have chest pain, dyspnea and coughed up blood. A scan of her chest showed pulmonary emboli and she subsequently suffered cardiac arrhythmias, cardiac arrest and dies. The actual cause of her injury was the cardiac arrest. The proximate cause was the use of SCD’s during surgery that pumped the unknown clot in her leg up through the circulation to her lung causing lack of oxygen, and cardiac arrhythmias. The surgeon would

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