Negligence is one of the most common claims in personal injury lawsuits. It happens if you suffer an injury due to someone else’s or a company’s careless action or lack of action. These types of lawsuits fall under civil cases, and the law refers to them as tort actions. A tort action simply means legal wrong.
Under negligence law, you can sue the liable party for the harm caused, either carelessly or accidentally. In this case, the responsible person’s action or failure of action falls below the reasonable standard of care. According to the American Bar Association, the appropriate standard of care depends on what a rational person would have done in similar circumstances.
Tort Liability
If you or your loved one suffers injuries due to someone’s negligence, you could recover the loss by filing a lawsuit. Injuries, in this case, are not limited to physical harm but include emotional, reputational, and economic damage. In addition, it covers violations of privacy, personal property, and constitutional rights.
In most cases, liability covers negligence, but at times it also recognizes intentional torts whereby a person harms another one intentionally
If the tort involves product liability, the court uses the strict liability doctrine whereby you do not need to prove the company’s negligence to win a claim for the damages.
Unlike criminal law:
- Tort law has a lower burden of proof
- Torts may result from negligence or intentional/illegal actions of another party
You can win a tort lawsuit even if a court acquitted the liable person in a criminal case.
#1. Intentional Torts
Intentional torts break into several subcategories, which include:
- Physical injuries - actions such as buttery can lead to injuries. The law does not care whether the act was intentional or accidental, as long as it preceded the injuries.
- Psychological harm - includes torts such as slander or invasion of privacy, which cause psychological damage.
#2. Strict Liability Tort
Unlike other cases, strict liability torts do not focus on whose fault it is but rather the consequences of the action. In this case, the law holds someone responsible for the consequences of their actions even if they did not intend to cause harm.
#3. Negligence Tort
This type of tort happens if you get harmed because someone failed to exercise the standard duty of care to prevent damage. For instance, a janitor at an office could be held responsible if they fail to put a wet floor sign leading to a slip and fall accident.
Some common causes of negligence include:
- A doctor operating on the wrong body part on the patient
- A driver driving under the influence
- A driver ignoring traffic lights leading to an accident
- A store owner failing to clean up a spill on time
How to Establish Negligence
If injured due to someone else’s actions, you may have a legal right to seek compensation for the damages done. But for you to get justice, you must provide proof against the defendant. To prove fault and establish negligence, your claim must meet four requirements.
Four Elements of Negligence
To prove negligence, you must verify the following elements.
Duty of Care
The law requires people to act with reasonable care to avoid causing harm to others through their actions. In this case, reasonable care is the level of caution a reasonably intelligent person would exercise in a similar situation.
However, the standard of care owed is more specific than general in some cases. For instance, some states have premises liability law that indicates that property owners owe visitors a certain standard of care.
In other cases, the standard care is higher than reasonable. For example, drivers must exercise a high degree of care when on the road to avoid accidents.
Other examples that illustrate duty of care include:
- In medical malpractice, the medical practitioner must provide treatment in line with what medical experts consider standard care to avoid causing injuries.
- A property owner must act promptly when notified about a possible hazard within their property. In addition, they must be aware of new dangers within their property and eliminate them promptly.
- Manufacturers must ensure that their products do not pose unreasonable or unexpected dangers to consumers in product liability cases.
Breach
After establishing the standard of care the defendant owed you, you need to prove that the defendant breached this duty. After presenting your claim to the court, only the judge or the jury should determine whether the defendant breach their duty of care.
Your personal injury attorney will fight to prove that another person would have anticipated that their action would have caused harm and acted differently. If this is true, the court holds the defendant negligent. But in most cases, the court requires expert testimony from professionals such as engineers and doctors to establish a breach.
Causation
You need to prove that the responsible person breaching the duty of care caused you harm. The court establishes causation by analyzing whether you would have been injured if the defendant had not acted the way they did. If the answer is no, then it is more apparent that the defendant’s action caused you harm.
Although it seems like a simple matter, causation is sometimes complicated, especially if the experts disagree on whether action A could cause damage B. For instance, in a product liability case, the involved experts may disagree on whether a product led to your cancer.
In addition, your attorney needs to tie the defendant’s negligent action to the injury and not just their action. The attorney has the burden of proving that your damages were reasonably foreseeable at the time. In this case, they will need to assess all the available evidence to convince the court.
Damages
You must have suffered harm to sue for negligence. If the defender’s careless action did not cause you harm, then you do not have a case to file. However, if you suffered injuries or property damage, you must show the extent.
At this point, your attorney relies on medical records showing that you saw a doctor after the accident. The lawyer will also show the incurred medical bills, proof of lost wages, and pain and suffering experienced.
Although the liability may be clear, a dispute may arise on the extent and nature of the damages. However, an experienced personal injury attorney will be able to determine what your case may be worth and gather enough evidence to prove the other party’s liability.
Types of Negligence
The majority of personal injury cases are based on one party being negligent. However, various types of negligence can prompt you to file for a personal injury claim. Each type depends on who might be liable for the accident and the extent of the damages.
Understanding how negligence works, different types, and how to prove liability can help in your claim. However, this is a complicated topic that requires assistance from an experienced personal injury attorney. The four types of negligence include:
#1. Comparative Negligence
Comparative negligence is where you may be partially responsible for your injuries. It might be hard to receive compensation even if you were only 1 percent responsible for the accident in such a case.
Comparative negligence further breaks into three subcategories:
- Pure comparative negligence - in this type of comparative fault, the plaintiff can recover compensation even if they had the highest percentage of blame in the accident. In this case, the court reduces the award amount in proportion to the degree of fault.
- Modified comparative negligence, 50 percent bar - in this type of negligence, the plaintiff can recover compensation even if they contributed to the accident. However, their fault must be less than 50 percent, in which case their compensation is reduced in proportion to the degree of fault. If the plaintiff’s degree of fault exceeds 50 percent, the court bars them from receiving compensation.
- Modified comparative negligence, 51 percent bar - some states follow the 51 percent bar rule whereby the plaintiff can recover damages if they were 50 percent or less at fault.
#2. Contributory Negligence
In this type of negligence, the plaintiff is partially responsible for their accident. In contributory negligence jurisdiction, if the jury finds you slightly liable for your accident, it bars you from receiving compensation. A good example of contributory negligence is when a driver texting while driving crashes with another driver who makes an illegal turn.
#3. Vicarious Negligence
In vicarious negligence, the defendant is indirectly responsible for an accident. For instance, if you suffer a dog bite, the dog owner is responsible for the accident.
#4. Gross Negligence
This is the most serious type of negligence and is primarily used in medical malpractice areas. In these types of cases, the defendant’s actions had a complete lack of regard for the safety of others. In other instances, the defendant’s actions could have been intentional. Either way, the liable party is charged with gross negligence.
#5. Difference Between Ordinary and Gross Negligence
In a personal injury case involving negligence, it is easy to confuse ordinary and gross negligence. However, there is a difference between the two terms and understanding them helps you know what to expect in your claim.
Ordinary negligence is whereby the defendant fails to use the expected level of care and caution, leading to another person’s injury. The accident can be a result of a careless mistake or unintentional action.
On the other hand, gross negligence is intentional and reckless behavior of the defendant that causes harm to others. In both cases, the fundamental disregard of responsibility must cause damage or injury to others.
Examples of Negligence
To establish negligence, your attorney needs to prove that you suffered injuries due to the defendant’s action or lack thereof. In personal injury law, negligence cases manifest themselves in various ways. A few examples include:
Wrongful Death
These types of claims are made against individuals whose actions resulted in the death of another person. In this case, the acts may have been intentional or negligent.
For instance:
- The law may hold the driver negligent for failing to use headlights at night, resulting in avoidable accidents and injuries.
- A driver can be negligent by ignoring the stop sign, causing other road users’ accidents.
Medical Malpractice
Medical negligence involves carelessness rather than intentional harm. In such a case, a medical professional fails to provide adequate medical care or meet the required standard for patient care.
For example, medical care negligence may include:
- Nursing home negligence
- An error by a nurse or pharmacist that leads to a patient’s injury
- Failure to provide nutritious meals to the patient
- A caregiver abandoning their patient
Premises Liability
A property owner must ensure that all visitors to the property are safe. You could sue for negligence if you suffer injuries due to an unsafe condition found at the premises.
Examples include:
- Dog bite
- Slip and fall accidents
- Falling objects
- Elevator accident
- Violation of fire safety code
- Ineffective security system
How Can a Personal Injury Attorney Help
Proving negligence in a personal injury case is not as simple as pointing fingers at someone. You need strong evidence showing that another person’s actions or lack of action caused you harm. On the other hand, the defendant will likely have an attorney who will try to prove them innocent or even blame you, so refrain from representing yourself.
In addition, do not talk to anyone else about your personal injury case other than your attorney. This minimizes the risk of saying something that might compromise your evidence and the possible compensation for the injuries.
If faced with a personal injury case involving negligence, you should contact your attorney as soon as you receive the required medical attention.
An experienced attorney understands the law and the statutes of limitations involving personal injury cases. They can, therefore, help ensure they gather the necessary evidence and file your claim within the required timeframe.
In addition, an attorney can help you recover damages such as:
- Lost wages
- Current and future medical expenses
- Loss of earning capacity
- Pain and suffering
- Mental anguish
Let a Personal Injury Attorney Help You
Injuries sustained from accidents due to negligence are debilitating and may require long-term care. The right personal injury firm can help you ease the burden by working closely with you and helping you prove negligence. In addition, a personal injury attorney can represent you in court and answer any questions that may arise on your behalf.
Contact a personal injury attorney today for a free consultation and a review of your case, and let them help you fight the insurance company.