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The Plaintiff's Perspective: What to Prove

THE PLAINTIFFSTo win a civil case, a plaintiff must prove his/her contentions by a "preponderance of the evidence". This standard means that more than one-half (more than 50%) of the plaintiff's allegations are true. This is a fairly easy standard to meet, since the judge or jury only needs to believe that the plaintiff is minimally more truthful than the defendant.

Civil lawsuits seeking damages often fall into one of two categories: intentional torts and negligence. Each type of suit requires the plaintiff to prove certain evidence.

Intentional Torts

INTENTIONAL TORTS are actions by a defendant done on purpose to harm another person (the plaintiff). To win a lawsuit alleging an intentional tort, the plaintiff must prove the following:

  • A physical act by the defendant AND
  • That the defendant acted intentionally AND
  • That the intentional act of the defendant in fact cause the injury of which the plaintiff complains and for which he/she is seeking damages

Note that for a plaintiff to succeed in an intentional tort lawsuit, ALL THREE of the above must be proven. If, for example, the defendant engaged in a physical act and acted intentionally, but that intentional act was not the cause of the specific harm alleged by the specific plaintiff bringing the lawsuit, the defendant is NOT liable for that particular claim.

Physical Act

The physical act by the defendant may be something tangible (punching plaintiff in the face, rear-ending plaintiff's car, trespassing on plaintiff's land and causing damage to plaintiff's property, etc.) or something less concrete (for example, libel or slander).

Regardless of the act, the defendant must actually have DONE something. Thinking about acting, verbal threats to act, and so on are not sufficient to establish the act portion of the test for liability for an intentional tort.


The defendant's act must be intentional: that is, defendant must consciously mean to do the act. Keep in mind that intending to act is NOT the same as intending to cause the harm that results. Whether or not the defendant intends to harm the plaintiff is irrelevant; he/she may not want have wanted to cause damage, but did so by merely acting as he/she did.

Cause in Fact

This part of the test for liability for intentional tort is the link between the act of the defendant and the damages to the plaintiff. The defendant's intentional act must be the actual reason for the harm suffered by the plaintiff.


NEGLIGENCE actions are brought when the defendant injures the plaintiff by accident. Unlike with intentional torts, the defendant in a negligence suit need not have intended to cause the complained-of harm, or even to have come in contact with the plaintiff or his/her property; it is sufficient that the defendant acted in a sub-par way that caused an accident resulting in some harm to the plaintiff.

In negligence claims, the Plaintiff must prove the following:

  • The defendant had a DUTY towards the plaintiff AND
  • The defendant breached his/her duty AND
  • The breach of duty was itself a direct result ("proximate cause") of the plaintiff's injuries AND
  • Damages

Again, ALL FOUR of the above must be proved for a plaintiff to prevail.


Plaintiff must prove that defendant owed plaintiff a duty; in other words, defendant must have some responsibility towards the plaintiff. For example, if plaintiff has a sign up around their land that says "Private/No Trespassing" every other person in the world has a duty not to trespass on plaintiff's private land.


The defendant must have breached the duty he/she owed to the plaintiff:  trespassed on plaintiff's land, for example. This means defendant must have acted in such a way, even if he/she did not intend for harm to the plaintiff to result, that disregarded his/her responsibility.

Again, intent to harm the plaintiff is not necessary; furthermore, the defendant need not actively know he/she is violating a duty to the plaintiff. Plaintiff must prove only that defendant acted in a way that was in breach of the duty owed to plaintiff.

Proximate Cause

The defendant's act must be sufficiently legally related to the harm suffered by the plaintiff. Plaintiff must prove that but for the defendant's negligence, plaintiff's damages would not have occurred. This becomes critical when there is more than one potential cause of plaintiffs harm, or when the link between the defendant's act and the plaintiff's damages is tenuous.


Plaintiff must prove that he/she suffered some actual damage. A breach of duty by a defendant that does not harm the plaintiff in any way cannot be used to incur liability upon the defendant. Plaintiff must be able to show tangible evidence of harm in the form of damages. If you cannot show any actual damages such as monetary loss then you may want to reconsider your lawsuit.

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