The Most Common Unintentional Tort: Negligence

Negligence Defined

The cause of action (i.e., civil “charge”) for negligence is best defined by the current California jury instruction:

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. (CACI 401.)

Basically, negligence occurs when you did something you should not have done, or didn’t do something you should have done.

Elements of Negligence

Individuals may be liable for their acts of negligence. To be found responsible for damage or injury to another, all of the elements of negligence must exist. The elements of a cause of action for negligence are: (1) a legal duty to use due care, (2) a breach of that duty, (3) causation between that breach and the Plaintiff’s resulting injury, and (4) actual loss or damage to the Plaintiff. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666.)


The first element of negligence is duty. Everyone has a duty to use ordinary care in conducting activities from which harm might reasonably be anticipated. [Witkin, 6 Summary (9th), Torts, §732] Duty is often referred to as the standard of care.

To determine whether or not a duty exists, the relationship of the parties is examined and the foreseeability of harm is analyzed. For example, an owner of property has an affirmative duty to use ordinary care to remove a reasonably anticipated hazard or to give warnings. Williams vs. Carl Karcher Enterprises, (1986) 182 Cal.App.3d 479; Tuttle v. Crawford (1936) 8 Cal.2d 126.

As a security officer, if you are assigned a post in an office building lobby, you would have a duty to ensure that the lobby area is safe for the public’s use. For example, if you notice a pile of ice cream on the floor in the lobby during your regular rounds, common sense tells you that a hazard exists because someone could slip and fall on the ice cream. You have an obligation to notify the building management as quickly as possible so that it can be cleaned up. It would also be prudent to either stand there until the mess is cleaned, or to mark it with a warning cone until it is cleaned.