Intent vs. Negligence

For a tort to exist and damages to be recovered, the harm must be done through either negligence or deliberate intent. An intentional tort happens when someone decides to deliberately do something that results in harm or injury to someone else. For example, the intentional tort of battery happens when one person punches another person in the nose on purpose.

Negligence falls under the unintentional category of a tort; that is, it involves harm that arises from unintentional action. Negligence occurs when reasonable care is not taken for the safety of others. Specifically, the law assumes that individuals have a duty to behave as a reasonable person under the circumstances.

There are five elements to a negligence case, as outlined below. In order to win the case, the injured party, or plaintiff, must prove all five elements.

1. Duty of care: The defendant (person accused of the tort) has to have a legal responsibility to the plaintiff.
   • A person working as a lifeguard at a pool has a duty of care to help a someone who looks like they might be drowning
2. Breach: If the defendant failed to meet their responsibilities, they have breached the duty of care.
   • The lifeguard at the pool has been drinking vodka from their water bottle all day and fell asleep behind their sunglasses.
3. Actual causation: The situation must show that the defendant’s breach of duty of care caused the harm.
   • While the lifeguard is drunk and asleep, someone drowns in the pool. If the lifeguard had been alert and paying attention, they would have been able to intervene.
4. Proximate causation: The key test for proving this element is foreseeability; that is, whether the defendant could have foreseen or expected that the plaintiff would be harmed due to the breach.
   • The whole reason to have a lifeguard at the pool is to prevent people getting hurt in and around the pool.
5. Damage: The final element is proof of harm—an injury and/or other measurable loss. These can include emotional, economic, or reputational damages.
   • In this example, the harm would be a person unfortunately losing their life.

Negligence does not apply when an injury is caused by an unavoidable accident, an event that was not intended and could not have been prevented even if the person used reasonable care. Negligence can be quite controversial because every situation is different. Each of the five requirements has to be analyzed and the plaintiff and defendant will have different interpretations.