What are the elements of negligence in New Hampshire?

emergency - driver negligenceMost personal injury claims are based on a legal concept known as “negligence.”  Negligence is a concept not defined by a state or federal statute, but by what’s known as the “common law”: essentially, legal principles developed through centuries of court decisions.  In short, negligence is the failure to use reasonable care.

A shopkeeper might be negligent if he fails to clear ice from the walkway in front of his store and a customer slips and falls.  If a driver rear-ends you because he was looking at his phone and not paying attention to the road, he also might be negligent.

In New Hampshire the legal elements of a “negligence” claim are similar or identical to other states.

  1. Duty Owed

In order to be liable for negligence, the suing party (plaintiff) must establish that the defendant (responsible party) owed him or her a “duty of care.”  In New Hampshire, the general rule is that every person has a duty to refrain from causing personal injury and property damage to third parties.  For example, a property owner has a duty to correct or warn guests about dangerous conditions on their land, like black ice or hidden potholes.  And a person driving a car has a duty to other drivers to drive safely.  However, generally speaking a person does not have a duty to save someone else from harm, unless they of course caused that harm.  Therefore, under the common law, if a person’s house is on fire, an innocent bystander would not have a legal duty to call the fire department.

  1. Breach of duty

In order to establish negligence, a plaintiff must then prove than the defendant breached their duty to act as a reasonable person.  What constitutes “reasonable” is obviously difficult to define.  For example, a young child is held to a different standard than an adult.

To determine whether a duty was breached, courts will try to compare the defendant’s actions to what a fictional “average reasonable person” would do in the same exact situation.  For example, the average reasonable person would not drink alcohol and then drive.  Therefore, if a defendant drinks and drives and causes a car accident, they have breached their duty of care.

  1. Caused Foreseeable Harm

Lastly, the plaintiff must prove that the defendant’s breach caused foreseeable harm.  Often, this is easy to prove: it’s foreseeable that driving drunk will cause a car accident.  However, sometimes the connection between the defendant’s actions and the harm caused is too distant to constitute negligence.

For example, if a rotting railing on a homeowner’s deck fails and a guest falls off onto the ground and breaks his shoulder, that is foreseeable and the homeowner might be negligent.  However, if a guest falls off the deck because of a rotting railing and is uninjured, but at that exact moment a branch from a neighbor’s tree snaps and falls on top of him, breaking his arm, the homeowner would not be liable.  Although the victim would not have been injured if the railing hadn’t broken and he hadn’t been in that exact location when the branch snapped, it was not foreseeable that this type of injury would occur due to a rotting railing.  Therefore, the homeowner would likely not be found liable for the victim’s injuries.


Clearly, negligence is a difficult concept to grasp in all jurisdictions, including New Hampshire.  This overview is extremely simplified and ignores many exceptions, special circumstances, and other complications.  If you were injured and you believe it was due to the negligence of a person or business, contact the experienced personal injury attorneys at Welts, White & Fontaine for a free evaluation.

Welts, White & Fontaine attorneys typically handle personal injury matters on a contingency fee basis.  That means you don’t pay unless you win, and there’s typically no up-front payment required.  Click here for more information about contingency fees in personal injury cases.

We will negotiate aggressively on your behalf with insurance companies to try and get you the settlement you deserve without resorting to a lawsuit. If litigation becomes necessary, Welts, White & Fontaine attorneys have decades of experience in the courtroom and conducting jury trials.

To speak with one of Welts, White & Fontaine’s experienced injury attorneys , please call us today at (603) 883-0797, or use the contact form in the footer of this page. Welts, White & Fontaine is Nashua’s largest law firm and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and of course Nashua.

Author: Israel F. Piedra

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Welts, White & Fontaine, P.C.

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