A well known area of Personal Injury Law is negligence. Negligence can occur anywhere, anytime, and when a person comes to harm, they may want to pursue litigation in order to compensate pain and suffering. Wrongful Death cases are often a result of negligence. However, just because this is an area of the law commonly seen by top Personal Injury lawyers, it’s not necessarily one that’s easy to navigate.
This writeup will see our readers through the following topics, and answer the following questions:
- What is the definition of negligence?
- Why are negligence cases so different?
- What are the “elements of negligence”?
- Explaining negligence in four parts
- Choosing the right Personal Injury lawyer for a negligence case
What is the definition of negligence?
Let’s begin by defining the term negligence under the law:
“Failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances.”
Why is every Personal Injury case so different?
As has been mentioned previously on our Law Resource: each Personal Injury case is unique, thus the reminder bears repeating. Negligence arises, and each time it occurs, must be dealt with according to the specific details of the case. Sometimes we cannot define negligence in a straightforward manner. This is because it involves intensive legal analysis of the actual elements of negligence as they relate to particular case’s facts. We will discuss this at length within the context of this article.
Standard of conduct
When it comes to the laws surrounding negligence it’s important that one conducts themselves in a manner falls within the “standard of conduct”. Thus, if a person isn’t conforming to the set standard, that person may be liable for any injurious behavior they inflict. In certain situations, the standard requires a person to have acted, which makes it possible for the actual omission of such an act to clear the way for a negligence claim to be brought against them.
What are the “elements of negligence”?
The four main elements of what make up negligence are:
Therefore, to be able to prove in a court of law that a defendant did act in a negligent manner that caused accident, injury, or death, the person bringing the lawsuit (the “plaintiff”) must be able to prove what’s known as the elements of negligence.
Even a step-by-step overview isn’t as simple as it looks. Negligence cases encompass a lengthy legal process that require an experienced lawyer with a great deal of in-depth understanding of the laws that surround such cases, as well as hundreds of successful cases seen to verdict (or settlement through mediation) through years of practice.
What are the four parts of negligence?
Let’s look at the four elements of negligence as they apply to Personal Injury:
Step 1. Duty: The first step in the four-part process is “duty”. “Duty” in a negligence case requires the plaintiff and their legal counsel to determine whether the defendant owed them a “duty”. Under normal circumstances, determining this will depend on the circumstances of the injurious behavior that occurred. Whether the defendant had a duty is something that is, in most cases, determined by a judge.
Step 2. Breach: The second step in the four-part process involves breach of duty. Simply put, a defendant beaches his or her duty by not acting in a reasonable manner in accordance with fulfilling their duty.
As an example, when one is driving, they owe a duty of care to obey state and federal laws. This includes going the speed limit, stopping at stop signs and red lights, and signaling before making a turn. This means a driver who runs a red light breaches their duty to drive in a reasonable manner.
In the example, it would mean the in a reasonable manner. This also goes back to “standard of conduct” in the same manner. Whether the defendant breached their duty is a question whose answer lay with the jury.
Step 3. Causation: This is probably the most complicated step in the legal process surrounding a negligence claim. This third step–causation–is sometimes split into two parts for a better understanding of the law and to simply its complexities in the most time saving manner.
The definition of causation under the law is as follows:
“[…]Causation in fact and Proximate Causation: These elements are split in two because even if the lawyer leaves them as a single step, both will always need to be addressed to see the case to settlement or verdict successfully. Cause in fact is the simpler of the two elements that make up step three. It’s the “but for” in the case. For example: “but for” the actions of the defendant, injury to the plaintiff would not have happened.”
What is proximate cause?
Proximate cause relates to the scope of the defendant’s responsibility. This element depends on if the injury to the plaintiff was foreseeable by the defendant.
However, proximate cause applies if the accident could have been prevented had the defendant not taken certain actions that they were aware they were taking. In these cases liability falls upon the defendant. Thus, they may owe the plaintiff damages for pain and suffering.
Step 4. Damages: In conclusion, the last and final element in a negligence case is damages. For a Personal Injury lawyer to win the case on behalf of the plaintiff, there must be legally recognized injury caused. This is normally physical injury to the plaintiff (broken bones from a car accident) or property damage (a totaled car). Thus, a lawyer must prove that due to negligence, damage was caused to property and/or injury was caused to another human being.
How does a client choose the right Personal Injury lawyer?
Negligence cases can easily and unfairly be turned into paltry settlements in the hands of a “paper pusher” lawyer. Only an experienced lawyer with Board Certification qualifies to take on a case involving negligence resulting in injury or a wrongful death.