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  • Jeff Vail

Negligence. (A Litigation Checklist Post)

Updated: Sep 5, 2020

“Negligence” conjures the specter of tort reform and run-away plaintiff’s lawyers. But what is the tort of negligence? The elements of negligence are simple: (1) duty, (2) breach, (3) causation, and (4) damages. United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992). That sounds simple—but “simple” negligence can be the most complex of all torts. The Colorado Civil Jury Instructions provide 32 separate “form” instructions for negligence, and thousands of variants have been issued by judges.

At its core, the concept of negligence is that every person has a duty to act as an objectively “reasonable” person—meaning that what society as a whole would say is “reasonable,” not what an individual subjectively thinks to themselves is reasonable. If someone fails to act as a reasonable person would under the circumstances, and their breach of that duty causes another person damages, then that person can be sued in court for the tort of negligence and the damaged party can recover money to compensate them for their damages.

As you can imagine, this can take a million forms. Careless driving that results in an accident injuring another is an example of negligence. Failure to clean up a spill on Aisle 12 causing someone to slip and break their hip is another. There is negligent infliction of emotional distress, negligent hiring, negligent supervision, negligent referral, negligent misrepresentations in business transactions, etc.

Whether a duty of care exist is a matter of public policy. Generally, individuals have a duty not to engage in misfeasance (an affirmative action that causes harm), but no duty against nonfeasance (failure to take affirmative action that could have prevented harm) unless there is a special relationship between the non-actor and the harmed party (e.g., a lifeguard).

Causation is another key element of a claim for negligence. Normally, a court will find that the breach of a duty of care caused damages when those damages were reasonably foreseeable to the defendant. You won’t be liable for the “butterfly effect” where your decision to hit snooze this morning set in motion a chain reaction that led to a car accident in Tampa. But there is a huge gray area in the middle of this spectrum of “foreseeable” causation where trial lawyers earn their pay.

The spectrum of negligence law is far too broad for a short article – introductory textbooks span hundreds of pages. At Vail Law, we use an open-source, Litigation Checklist approach to developing claims and defenses tailored to each unique situation. Often these include breach of fiduciary duty, fraud, breach of contract, and exotic statutory causes of action. But sometimes simple negligence is the best claim – or hardest claim to defend – of them all. Contact Jeff Vail at (303) 600-3730 or

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