What's The Difference Between Negligence and Something Criminal? | JD Supra (2023)

What's The Difference Between Negligence and Something Criminal? | JD Supra (1)

The terms negligent or negligence are used a lot in the legal world.

Even most people outside of the legal industry are at least somewhat aware of what these words mean.

In this blog and many other legal blogs, people who have been injured in accidents are told to speak to lawyers if the negligence of others caused their injuries.

TV shows, movies, radio, and internet news sites are littered with news reports about incidents of negligence that have led to injuries.

But what is negligence? Is there a difference between something being deemed negligent and something being considered criminal?

In the legal world, there is negligence, or civil negligence, and criminal negligence.

The article below will define criminal negligence, civil negligence and the differences between the two.

What Is Civil Negligence?

The legal definition of negligence is "failure to use reasonable care, that a reasonable person would, resulting in damage or injury to another."

Negligence is an integral part of personal injury cases because injuries are often the result of someone else's negligence.

Negligence can occur in car accident cases, slip and falls, workplace accidents, and more.

Negligence cases have four basic elements that are used to prove whether or not a person acted negligently.

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Those elements are:

  1. Duty- The defendant owed a legal duty to the plaintiff under the circumstances
  2. Breach- The defendant breached that legal duty by acting or failing to act in a certain way
  3. Causation- It was the defendant's actions, or inaction, that caused the plaintiff's injury
  4. Damages- The plaintiff was harmed or injured as a result of the defendant's actions.

You have to prove each of these elements before your case can be settled.

It is your attorney's responsibility to prove that the defendant was at fault before you will be able to receive any compensation for your damages.

Proving negligence often requires extensive fact-gathering and collecting evidence regarding every moment that led to your accident and the moments following your accident.

Examples of Civil Negligence

There are plenty of examples of negligence that can lead to someone filing a personal injury claim or lawsuit.

Some prime examples are:

  1. A doctor operating on the wrong patient or the wrong body part because they misread the chart.
  2. A driver running a stop sign and driving well over the legal speed limit.
  3. A restaurant owner who mops the slippery floor and doesn't put up a "Wet Floor" sign.
  4. A company releasing a hazardous drug without thoroughly testing the medication and identifying side effects.
  5. A property owner that let the steps to their house decay, or never fixes a broken handrail could be negligent if they invite friends over to their house and their friends hurt themselves on the railing or steps.
  6. A store owner knowing that things get out-of-hand on Black Friday but still hosts a big sales event, encouraging a mob scene with no security.
  7. A person with a known dangerous dog that he takes to the park where the dog bites a small child.

What Is Criminal Negligence?

Criminal negligence is conduct where a person ignores an obvious risk or disregards the life and safety of those around him.

Both federal and state courts describe this behavior as a form of recklessness.

The negligent person acts significantly different than most people would under similar circumstances.

An unfortunate example of this is a parent or guardian leaving a loaded firearm where a small child can get it.

Certain crimes base culpability on a criminally negligent standard.

An example of this is involuntary manslaughter.

To be convicted of this crime, and held criminally negligent, the prosecutor will have to prove that the defendant killed someone unintentionally but acted with unlawful negligence when they did it.

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Examples of Criminal Negligence

A few examples of a person acting with criminal negligence are:

  1. Firing a weapon in the air during a celebration at a public space park
  2. Leaving your child in your car unattended in hot weather.
  3. Swiping at someone’s hand while they are holding a loaded gun
  4. Texting and speeding while driving.

We mentioned this above, but a textbook example of criminal negligence is involuntary manslaughter.

A person has committed involuntary manslaughter if:

  1. They kill someone unintentionally
  2. They do so via criminal negligence or in the commission of a crime that's not a felony.

What About Criminal Neglect?

A term that is often confused with negligence is neglect.

These two terms are related, but they describe two different kinds of actions.

Both civil and criminal negligence describe failures to exercise reasonable levels of care in certain circumstances, but neglect describes a type of abuse where a person fails to care for someone who cannot care for themselves.

This often occurs in familiar or other caretaking settings.

Neglect can often rise above the level of criminal behavior, but criminal neglect is different from criminal negligence.

Examining the Differences in Negligence and Criminal Negligence

Criminal negligence and civil negligence definitions share much of the same terminology, like the "standard of care," and "a reasonable person."

Still, there are some clear differences.

Criminal negligence requires someone to fail to know of a substantial and unjustifiable risk to be convicted.

That same requirement doesn't exist for civil negligence.

Also, criminal negligence requires a gross deviation from a reasonable standard of care.

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Civil negligence can be found if there is any deviation from a reasonable standard of care.

This makes it much harder to meet the criminal definition of negligence than to meet the civil definition.

Intent in Criminal Law

To find someone guilty of a crime, it has to be proven that the person committed a criminal act and had the appropriate means rea.

Mens rea translates to guilty mind, but it has come to mean criminal intent in criminal law.

Most statutes that criminalize behavior will also specify a level of intent required for conviction, but all will.

There are many levels of criminal intent, including intentional behavior, criminal negligent behavior, and reckless behavior.

Needing intent is vital for many societal and policy reasons.

Criminal convictions can result in incarceration, fines, and probation, so there's a belief that a person's conduct should be intentional, grossly negligent, or grossly negligent to be convicted.

When Does Negligence Comes into Play?

Only the government can bring a case when it comes to criminal negligence.

That means the appropriate prosecutorial body will examine facts and have the responsibility to decide if a criminal charge should be filed.

If it is decided that a criminal charge should be filed, the elements of the criminal case have to be proven beyond a reasonable doubt.

Civil negligence is used to determine liability in car accidents and many other types of civil actions.

Civil negligence is used to determine liability in:

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  • motor vehicle accidents
  • semi-truck crashes
  • medical malpractice
  • slip and fall accidents
  • nursing home liability
  • premises liability

Any case in which one person sues another person for negligently causing injury to the victim falls under the civil negligence umbrella.

As a plaintiff, to win a civil negligence case, you only need evidence to back up your claim.

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If you are unable to prove negligence, whether it is civil or criminal negligence, in your personal injury case, there's no way for you to recover monetary damages.

That means you will be responsible for paying your medical expenses and any other damages incurred in the accident without any financial assistance.

Negligence is a tricky term because it depends on things like “a gross deviation from a standard of care” and deciding what a reasonable person would do.

Depending on your case, there isn't always an easy way to identify the parameters around a reasonable standard of care.

This is why criminal and civil negligence cases are often complicated, expensive, and unpredictable.

That's why if you've been injured in an accident, you need to enlist the help of a law firm.

As the victim of someone else's negligence, it is the job of your attorney to prove that the defendant was negligent.

This can often be done before going to trial, but some civil cases do make it to court because it isn't clear if the defendant is negligent or not.

An experienced personal injury attorney will not be afraid of taking a personal injury case to court to win compensation for their client.

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What is negligence in relation to criminal law? ›

Criminal negligence is a species of criminal culpability or fault. It is when criminal liability is imposed on the basis that a defendant should have been aware of some risk they are taking.

What are the 3 principles of negligence? ›

There are three elements in the tort of negligence; duty of care, breach of the duty and damages. Duty of care means that any single person must always take reasonable care so that he can avoid omissions and acts that he can foresee reasonably as likely to result to injury to his neighbor.

Is willful negligence a crime? ›

Introduction. Under Section 20 of the Criminal Justice and Courts Act 2015 it is a criminal offence for an individual to ill treat or wilfully neglect another individual of whom s/he has the care by virtue of being a care worker.

What is the difference between negligence and crime? ›

Negligence is primarily part of tort law (tort is a civil wrong—meaning not a criminal act and must be solved in a civil court—that causes stress or harm to another person and imposes a legal liability).

What is an example of criminal negligence? ›

Here are some common examples of criminal negligence: Firing a gun into the air at a party. Leaving a loaded weapon in reach of a child. Swiping at a loaded weapon in someone's hand.

What are the 4 examples of negligence? ›

While seemingly straightforward, the concept of negligence itself can also be broken down into four types of negligence: gross negligence, comparative negligence, contributory negligence, and vicarious negligence or vicarious liability.

What 3 things must you prove to have a case for negligence? ›

Proving Negligence in a California Personal Injury Case
  • That the defendant owed the plaintiff a duty of care;
  • That the defendant breached such duty through negligence; and.
  • That the defendant's negligence was a substantial factor in causing the harm (“causation”).

What 4 things must be present for a person to be found negligent? ›

A Guide to the 4 Elements of Negligence
  • A Duty of Care. A duty of care is essentially an obligation that one party has toward another party to exercise a reasonable level of care given the circumstances. ...
  • A Breach of Duty. ...
  • Causation. ...
  • Damages.
12 Nov 2020

What is the test for negligence in criminal law? ›

Thus, for a finding of negligence, it must be the case that the accused acted unreasonably – in a manner that the reasonable person would not. However, if an accused did not act as the reasonable person, he can only be blamed for this if he could have acted reasonably – in the sense described under capacity.

What is the difference between negligence and willful misconduct? ›

Wilful misconduct is differentiated from negligence in that it includes an element of intention: the offending party's intent or conscious indifference to the consequences of its acts or omissions. The courts have found that wilful misconduct involves either: A positive intent actually to harm another.

How do you prove Wilful neglect? ›

Wilful neglect requires the offender to have behaved deliberately so for example by consciously withholding necessary medication or where they could not care either way if that medication is provided so in other words where they are reckless.

Why is negligence not a crime? ›

To constitute a crime, there must be an actus reus (Latin for "guilty act") accompanied by the mens rea (see concurrence). Negligence shows the least level of culpability, intention being the most serious, and recklessness being of intermediate seriousness, overlapping with gross negligence.

What is negligence in law simple words? ›

The most usual definition of negligence is that it is conduct, or a failure to act, that breaches a duty to take care. It breaks down into several elements, all of which must exist to give rise to a liability to pay compensation.

What is the most common example of negligence? ›

Incorrect medication prescriptions or administration of drugs is one of the most common cases of medical negligence reported. This can occur when a patient is prescribed the wrong drug for their illness, receives another patient's medication or receives an incorrect dosage of medication.

What are the 5 types of negligence? ›

Do you want to hold another party accountable for their negligent behavior? Doing so means you and your lawyer must prove the five elements of negligence: duty, breach of duty, cause, in fact, proximate cause, and harm.

What does negligence mean give examples? ›

The definition of negligence is carelessness or not paying attention, causing someone or something to be at risk of being harmed. An example of negligence is leaving a two year old child home alone by himself. noun. 2. The failure to use reasonable care, resulting in harm to another.

How do you determine negligence? ›

To prove negligence, the plaintiff (the injured party) must establish 3 elements:
  1. Duty. The plaintiff must prove that the defendant owed them a duty of care. ...
  2. Breach. The plaintiff must prove that the defendant breached the duty of care. ...
  3. Causation.

What is the most difficult element of negligence to prove? ›

Many articles discuss what negligence is and how to prove it, but the least understood element among these four is causation. Additionally, out of these four elements, causation is typically the most difficult to prove, especially in medical malpractice cases.

What is the burden of proof in a negligence claim? ›

In a negligence case, the aggrieved party (plaintiff) bears the burden of proof to show each element of their cause of action by a preponderance of the evidence.

What is the standard of proof for negligence claims? ›

Generally, the burden of proof in a negligence claim rests on the claimant who must show, on the balance of probabilities, that they were injured by a negligent act or omission for which the defendant is responsible.

What 4 things must be proven by a plaintiff to show negligence? ›

Legally speaking, negligence is a failure to use reasonable care under the circumstances. In order to establish negligence, you must be able to prove four “elements”: a duty, a breach of that duty, causation and damages.

What are damages in negligence? ›

Damages for negligence constitutes court-ordered compensation for personal injury, property damage, and associated expenses caused by the negligence of another person.

What is a type of causation that must be proven in a negligence case? ›

Proximate Cause. The law uses the “but for” test to determine if a defendant was the direct cause of a plaintiff's injury. To prove direct cause, a plaintiff must show the injury would not have occurred “but for” the defendant's conduct. Proximate cause is concerned with foreseeability.

What is the four prong test that is required to prove a negligence claim? ›

Negligence claims must prove four things in court: duty, breach, causation, and damages/harm.

Is negligence and misconduct the same? ›

In California, while negligence is a failure to use ordinary care and gross negligence is a lack of care indicating passive indifference to results, willful misconduct: Is not marked by a mere absence of care. Involves a positive intent to: harm another; or.

What is an example of willful neglect? ›

Knowingly violating the law, or acting with knowing disregard for its provisions, are ways to commit willful neglect. Nowadays, for example, a terse explanation of how an office does things with regard to its NPP — in this case, wrongly — could soon get this CE, and others like it, in boiling hot water.

What does willful neglect of duty mean? ›

Neglecting to perform all the duties of his or her job, or failing to complete or do some particular task.

What is willful deception? ›

More Definitions of Willful Misrepresentation

Willful Misrepresentation means the act of an intentional misrepresentation, deceit, or concealment with the intention or with reckless disregard for the probable result of depriving a Person of property or legal rights or otherwise causing injury.

What is willful misconduct? ›

Willful misconduct involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. Note: Mere technical violation of police regulations or ordinances does not necessarily constitute willful misconduct.

What is willful malfeasance? ›

Malfeasance. In contrast to misfeasance, which is generally an unintentional breach of contract, malfeasance refers to a willful and intentional action that injures a party.

What are the elements of negligence in criminal law? ›

Doing so means you and your lawyer must prove the five elements of negligence: duty, breach of duty, cause, in fact, proximate cause, and harm.

What are the 4 elements of negligence in law? ›

The existence of a legal duty to the plaintiff; The defendant breached that duty; The plaintiff was injured; and, The defendant's breach of duty caused the injury.

How is negligence proven? ›

Proving Negligence. Most civil lawsuits for injuries allege the wrongdoer was negligent. To win in a negligence lawsuit, the victim must establish 4 elements: (1) the wrongdoer owed a duty to the victim, (2) the wrongdoer breached the duty, (3) the breach caused the injury (4) the victim suffered damages.

What is common negligence? ›

Probably one of the most common types of personal injury lawsuits involves a claim of negligence. Negligence describes a situation in which a person acts in a careless (or "negligent") manner, which results in someone else getting hurt or property being damaged.


1. 2020 SULC End of Year CLE- Criminal Law
(Southern University Law Center)
(JD Advising)
3. The International E-Symposium on "Supranational criminology: Dealing with International Crimes" D1
(Indian Society of Criminology Jodhpur Chapter)
4. Bernstein Lecture 2007 | Joseph Lookofsky, Desperately Seeking Subsidiarity
(Duke University School of Law)
5. Doctrine of Proximate Cause
(Lex Commentarius)
(Law Basics)
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