Elements of Liability and Fault

Whose Fault Is It?

Sep 5, 2007

Wondering if you have a claim against someone who hurt you or damaged your property? First you need to know whether that person is legally liable for the damages.

Common law liability consists of four elements. If any one is missing, there is no liability – and therefore no claim. These elements are:

The first two constitute negligence. In short, negligence is doing something you shouldn’t have done or not doing something you should have. The second two require that the negligence be the proximate cause of the loss. In other words, it must have led directly, in an unbroken chain of events, to a financial loss for someone else.

Car accidents are a common source of legal liability. In almost all accidents, someone will be found responsible for failing to act as they should. Most accidents result in damage to the vehicles or injury to people in them, and these are clearly a direct result of the accident.

For example, a person who fails to stop at a red light and hits someone who has a green light is negligent because he/she had a duty to stop at the red light and failed to do so. If there is damage to the other vehicle from the accident, the at-fault driver would be held liable for that damage.

On the other hand, sometimes there is no claim because one or more of these elements is missing. This is not uncommon in homeowner’s claims. If a home catches on fire, neighboring homes are sometimes also damaged, whether by the fire or attempts to extinguish it. Often, the owner of the adjacent home will seek compensation from the company that insures the house where the fire started.

In order for the neighbor to collect from the first homeowner, the first person must be legally liable. In order to be liable, it must be shown that the homeowner failed to act in a reasonably responsible way, that this failure caused the fire, and that the fire led directly to the neighbor’s damages.

However, it’s not always possible to prove the cause of a fire. Or if the cause is known, it’s not necessarily the fault of the owner. If the fire was caused by something beyond the reasonable control of the homeowner, there is no negligence; hence, no liability and no claim. An example might be a short in an electric outlet that was installed years before the person bought the home. If there was no reason to suspect a problem with the outlet, the homeowner could not be considered to be at fault for failing to repair something that he/she had no reason to think was broken.

Of course, there are situations where negligence does cause a fire, such as when someone is smoking in bed or improperly installs an electrical connection or appliance. When negligence is present and leads directly to financial loss for another party, that loss can often be recovered through a liability claim against the company that insures the negligent party.

There are other ways that one party can be held liable for damages, even in the absence of these elements; but if direct negligence cannot be shown, the party seeking to recover usually must do so through his/her own insurance.

The copyright of the article Elements of Liability and Fault in Insurance is owned by Andrew Glover. Permission to republish Elements of Liability and Fault in print or online must be granted by the author in writing.