Elements of Negligence

Most personal injury cases are based on the law of negligence. The elements of negligence are:

  1. a duty of conduct for the protection of others against unreasonable risk of harm
  2. a breach of that duty
  3. which is the proximate cause of an injury, and
  4. the resulting legally compensable damages. [1]


A legal duty based in Washington common law (law originating in court decisions) arises from foreseeability.[2] If conduct does not present unreasonable, foreseeable risk of injury there is no duty and therefore no negligence.[3]

Where a driver had no reason to foresee that a small child known to have been under the supervision and care of others only minutes earlier would be near the vehicle, there was no legal duty when operating the vehicle even though it resulted in the child being run over and killed.[4] On the other hand, a driver could foresee the danger of running over someone sleeping in a grassy area when the driver knew that person had recently left the area on foot and had been drinking, and rather than driving down a dirt road instead chose to cut across a grassy field. [5]

Negligence in rooted in court-made law, but the standard of care required of a reasonable person may be prescribed by legislation.[6]


Proximate Cause

Proximate cause requires a reasonable connection between the defendant's breach of duty and the injury.

Proximate cause has two elements:

  1. cause in fact;
  2. legal cause.[7]

Cause means a but-for direct chain of events from the breach of duty to the injury.

Legal cause is a policy determination made by courts as to whether the breach of duty “is too remote or insubstantial to impose liability.” [2]

The ‘Christopher Columbus’ and ‘Farmer Brown’ illustrations are commonly used to explain proximate cause.

If Christopher Columbus did not sail an ocean, I would not be sitting behind a computer in Seattle writing this website material. The is cause in fact, but too remote to be legal cause. (Whether Christopher Columbus is a hero or a villain, or some mix of the two is another topic not discussed here. Form your own opinion. Has nothing to do with this example.)

Farmer Brown’s cow kicks over a lantern, sitting straw on fire. The fire consumes the barn, then the farmhouse, then spreads to neighboring homes, the whole village, and eventually the whole city of Chicago burns down.

Maybe Farmer Brown should not have placed the lantern so close to the cow, and should not have had so much dry straw near the lantern. Breach of duty.

Because he did place the lantern so close to the cow and so close to dry straw, this led to an unbroken chain of events that burned down Chicago. Cause in fact.

Is Farmer Brown’s fire insurance going to have to rebuild all of Chicago? Probably not. Too remote. Does not satisfy legal cause, thus no proximate cause.

[7]  Christen v. Lee, 113 Wn.2d 479, 507, 780 P.2d 1307 (1989); Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985);Shah v. Allstate Ins. Co., 130 Wash. App. 74, 121 P.3d 1204 (2005).

[2] Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468 at 478-79, 951 P.2d 749 (1998).

Violation of the rules of the road as not negligence per se (not automatic negligence) but is evidence of negligence.[1]


[1] Bodin v. City of Stanwood, 130 Wn.2d 726, 927 P.2d 240 (1996)(citing the Restatement of Torts); Lewis v. Scott, 54 Wn.2d 851, 341 P.2d 488, (Wash. 1959); Harbeson v. Parke-Davis, 98 Wash.2d 460, 468, 656 P.2d 483 (1983); Rosendahl v. Lesourd Methodist Church, 68 Wash.2d 180, 412 P.2d 109 (1966); Caughell v. Group Health Coop., 124 Wash.2d 217, 233, 876 P.2d 898 (1994); Jurgens v. American Legion, 1 Wash.App. 39, 459 P.2d 79 (1969).

[2] Hansen v. Friend, 118 Wash. 2d 476, 824 P.2d 483 (1992) (whether duty was owed to minor depends upon foreseeability of harm; Rose v. Nevitt, 56 Wn.2d 882, 355 P.2d 776, (Wash. 1960)(No duty to reasonably have foreseen that backing an automobile involved a risk of injury to an infant, when the infant was last seen about twenty minutes earlier in the nearby house, was not known by the driver to be able to walk, and  older children and one adult were present and in a better position to see and warn the driver had they noticed an infant behind his vehicle.)

[3] Id.

[4] Id.; Lamoreaux v. Fosket, 45 Wn.2d 249, 273 P.2d 795 (1954).

[5] Rikstad v. Holmberg, 76 Wash. 2d 265, 456 P.2d 355 (1969).

[6] Young v. Caravan Corp., 99 Wash.2d655, 659, 663 P.2d 834, 672 P.2d 1267 (1983) (citing W. Prosser,Torts § 36 (4th ed. 1971)).