Attorneys at Law





Invariably, when we try to explain negligence, a client’s eyes seem to glass over.  At that point, the conversation is just being endured, really.  So we have tried to come up with a useful way to teach the gist of it without getting lost in the minutia.  About the time we try to be general, a hundred million specific examples come up of how the general rule does not apply.  But with a little patience, a very general concept of how to establish a negligence claim can be taught without a client getting too frustrated.  The following is a stab at that.

Personal injuries are also discussed elsewhere on this site. 


North Carolina inherited the law of negligence from the English common law and still uses common law principles.  The law of negligence is part of a larger body of law called torts, governing private rights of reimbursement for damages to people or property, which North Carolina also inherited or adopted from English common law when the state was formed.  The English common law arose from tribal law and the cannon law of the Roman Catholic Church, which was itself developed from Judeo-Christian principles that were superimposed upon the structure of Justinian’s Code (Roman law).  For an in depth treatment of the development of English common law, see:  Berman, Harold. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Massachusetts: Harvard University Press, 1983.


Although the following is only a very basic discussion of the law of negligence, it is somewhat technical.  So bear in mind while working through it that the law of negligence is simply a way to look at the facts surrounding an accident to figure out whether the person being sued should have known better than to act the way he or she did; and if so, to determine how much money the person who acted wrongly must pay to compensate the person who was harmed. 


A negligence action is a civil matter, which is about a private issue, not a criminal one.  The person bringing the suit, who is called the plaintiff, has to show certain facts in order to win.  The person being sued is called the defendant.  The facts the plaintiff has to prove in order to win are known as his or her burden of proof.

To recover money in a negligence action, a plaintiff has the burden of proving four things (called elements).  The first element is that the defendant owed the plaintiff a duty to act in a certain way (called a duty of care).  The second element is that the defendant breached his or her duty of care.  The third element is that the defendant’s breach of his or her duty of care was the proximate cause of the fourth element, which is that the plaintiff suffered damages.  So the plaintiff must prove that the defendant owed a (1) duty of care to the plaintiff, that the defendant (2) breached this duty of care, and that this breach (3) proximately caused the plaintiff to suffer (4) damages.

Before this starts making your head spin, let’s apply it to the example of someone texting while driving, who rear-ended another driver stopped for a red light.  The driver who was rear-ended is the plaintiff, and the driver who ran into the plaintiff is the defendant.  The defendant had a (1) duty of care to watch where he or she was going (keep a proper lookout).  The defendant (2) breached that duty of care by texting instead of paying attention.  Because the defendant was not paying attention, he or she ran into the plaintiff’s car, which will cost money to fix.  That is, the defendant’s breach of his or her duty of care (3) proximately caused the plaintiff’s (4) damages.  The defendant owes the plaintiff damages, the amount of money it would cost to fix the plaintiff’s car.

But what if a plaintiff is also at fault?  Let’s use different example.  Assume that the plaintiff was some guy who was standing in the road at night.  Also assume that the defendant was going 10 miles an hour over the speed limit, and she did not see the plaintiff in time to avoid hitting him.  In North Carolina, the plaintiff might not get anything because he was also negligent, which is called contributory negligence, and that completely bars a plaintiff from recovery (getting paid damages).

To prove the plaintiff’s contributory negligence, the defendant in the last example has to use the same four (4) elements to show that the plaintiff was also negligent.  The defendant would argue that the plaintiff had a (1) duty to use reasonable care for his own safety and he (2) breached it by standing in the road at night because he should have foreseen that an oncoming driver might not see him and run over him.  So the plaintiff’s breach of his duty of care was a (3) proximate cause of his own (4) injury (damages). 

North Carolina is one of only a handful of states that use contributory negligence as a complete bar from recovery in negligence cases.  Most states in the United States apply the law of comparative negligence, under which the amount of money the defendant owes the plaintiff would be reduced by the percentage the plaintiff was at fault.  For instance, in the example of the plaintiff standing in the road, if a jury found that his negligence only accounted for 35% of what caused the accident, then the court would order the defendant to pay 65% of his damages. 

Again, this is only a very general discussion of the law of negligence.    There are all kinds of cases dealing simply with one element of negligence, such as what establishes proximate cause. That argument tends to come down to whether a defendant could have reasonably foreseen that the breach of his or her duty of care would have caused of the plaintiff’s damages.  There are also tons of cases about what kinds of damages a defendant has to pay.  For instance, North Carolina does not require a defendant to compensate a plaintiff for mere inconvenience.  We use these examples only to point out that negligence cases can get quite technical. 

There are many kinds of negligence actions that do not involve personal injuries.  A sales person can be liable for negligent misrepresentation when selling a car that is not remotely what he or she made out to be.  A professional, such as a doctor or a lawyer, can be liable for damages caused by his or her failure to treat a patient or a handle a client’s case in the right way.  Negligent pet owners can be found liable when their animals are not kept under proper control and cause damage to other people’s property.  Employers can be liable for the negligent training of their employees when that causes their customers’ injuries.  These are just a few examples.

In all negligence actions, the plaintiff has to meet the same four elements: duty, breach, proximate cause and damages.  Keeping that in mind, will at least provide a general idea about whether a negligence action can be won.

In Depth Resources

1) For an in depth treatment of North Carolina’s law of negligence, see:

Logan, David A., and Logan, Wayne A. North Carolina Torts (Second Edition). Durham, North Carolina: Carolina Academic Press, 2004.


2) For an appellate case dealing with negligent infliction of emotional  distress that sets out the various elements of negligence, see:

Foster v. Crandell, 181 N.C.App. 152, 638 S.E.2d 536 (2007)

This is a link to that on Justicia US Law (an awesome, free website):


3) For an appellate case dealing with proximate causation, see:

Gibson v. Ussery, 196 N.C.App. 140, 675 S.E.2d 666 (2009).

This is a link to that case in the NC Supreme Court library (go to page 5):


4)     For an appellate case dealing with contributory negligence, see:

Whisnant v. Herrera, 166 N.C.App. 719, 603 S.E.2d 847 (2004).

This is a link to that case on Justicia (again, great resource):