negligence | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction / Criminal Law

Negligence is a culpable mental state specifying that the actor should have been aware of a substantial and unjustifiable risk.

Negligence is a legal concept used in both civil and criminal law. It refers to the failure of a person to take reasonable care, resulting in harm or injury to another person. Negligence is a key component in many personal injury cases, as it is a basis for holding someone legally responsible for damages caused by their actions or inactions.

Negligence as a Culpable Mental State

In criminal law, negligence is one of the four culpable mental states recognized by the Model Penal Code, along with purpose, knowledge, and recklessness. Negligence is defined as a failure to be aware of a substantial and unjustifiable risk that a particular result will occur. This is different from purposeful behavior, which is intended to bring about a particular result, or knowing behavior, which involves an awareness that a particular result is likely to occur.

Standards of Proof for Negligence

To establish criminal negligence, the prosecution must prove that the defendant’s conduct fell below the standard of care that a reasonable person would have exercised in similar circumstances and that this breach of duty caused harm to the victim. The level of care required depends on the circumstances of the case, including the nature of the activity involved, the degree of danger presented, and the level of expertise of the defendant.

For example, a driver who is texting while driving and causes an accident may be charged with criminally negligent homicide if the accident resulted in a fatality. The prosecution would need to show that the defendant’s texting while driving fell below the standard of care that a reasonable person would have exercised and that this behavior caused the accident and subsequent death.

Negligence in Civil Law

Negligence is also commonly used in civil law cases, such as medical malpractice or personal injury claims. In these cases, the plaintiff must show that the defendant had a duty of care to the plaintiff, that the defendant breached that duty, and that the breach caused the plaintiff’s injuries. The standard of care required in civil cases is typically lower than in criminal cases, and is based on what a reasonable person in the defendant’s position would have done.


In both criminal and civil cases, negligence can be a difficult concept to prove. It requires a careful analysis of the facts of the case, including the defendant’s actions, the level of risk presented, and the harm caused to the victim. Expert witnesses may be called to provide testimony on the standard of care and whether the defendant’s actions met that standard.

Learn More

On Other Sites

Owen, D. G. (2006). The five elements of negligenceHofstra L. Rev.35, 1671.

On This Site

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Last Modified: 06/30/2023


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