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Negligence is one of the most important concepts in a personal injury case. It’s so critical, in fact, that most of the hard work in your personal injury case will go toward establishing that the defendant’s actions amounted to negligence. (In a personal injury lawsuit, you’re the plaintiff if you’re the one filing the lawsuit, and the defendant is the person you’re suing.) If you and your attorney can’t prove negligence, then your personal injury case will fail.

So, what does negligence mean in an injury claim, and how do attorneys go about proving it? In this article, we’ll define negligence and go over the fundamental elements your attorney must prove to show a defendant was negligent.

Negligence: The Everyday Definition

Lawyers and other legal professionals tend to use very specific (sometimes confusing) language. Even when a lawyer uses words you’re familiar with, they might use them with a different meaning from what you’re used to. “Negligence” is a good example of this.

To see what we mean, let’s take a look at the everyday, non-legal definition of negligence. When we search for “negligence” on Google, we get the following definition: “failure to take proper care in doing something.” That definition lines up with the way most people would use the word “negligence” in conversation.

If you think about some possible examples of negligence to fit that definition, you’ll realize how broad the everyday definition of negligence is. Under the Google definition, you could call someone negligent if they got behind the wheel while drunk and caused a car accident. However, you could also use the same definition to label someone negligent if they cut their finger while chopping vegetables or forgot to lock up their house as they rushed out the door. After all, none of those things would have happened if the person was taking the proper care.

So, the everyday definition of negligence isn’t specific enough to use in civil lawsuits. If lawyers and courts defined negligence using the ordinary definition you’ll find in Google or a non-legal dictionary, people could sue a chef for overcooking salmon or a dry cleaner for shrinking a shirt.

Courts use a similar but much more specific definition of negligence to decide whether the defendant in a personal injury case should be held responsible for injuries and losses. Our legal system defines negligence as “the failure to exercise the care toward others which a reasonable or prudent person would do in the same or similar circumstances.”

This legal definition may seem not too different from the everyday definition at first. However, the second part of the legal definition — the part that checks the defendant’s behavior against how a reasonable person might behave in the same situation — is very important, because it distinguishes between the drunk driver and the absent-minded vegetable chopper we described earlier.

After all, no one is perfect, and even reasonable people make mistakes and do absent-minded things. Reasonable people have off days where they misplace their car keys and burn their toast. But reasonable people never get behind the wheel and drive drunk, because they know they could injure or kill someone.

RELATED BLOG ARTICLE: Do You Have a Personal Injury Case? Here’s How Attorneys Decide

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Four Elements of Negligence

So, how do attorneys establish what a reasonable person would do in a situation and then compare a defendant’s behavior to prove a negligence claim? To create a standard for proving negligence, courts have broken down the concept of negligence into four different components or “elements.” To prove negligence in a personal injury case, an attorney must prove each of these four elements.

  • Element #1: Duty of Care (Also Called Standard of Care)

    First, to prove negligence in a civil case, you have to show that the defendant had a duty of care toward you, the injured party. A duty of care means an obligation to act with a certain degree of reasonable caution and good sense. This element is usually the simplest to prove since our laws already establish a duty of care in many situations.

    • Example of duty of care: All drivers have a duty to exercise care toward others on the road, including other drivers, cyclists, and pedestrians. Every driver has to obey traffic laws and drive in a way that’s not reckless or dangerous.
  • Element #2: Breach of Duty

    Once you’ve proved the defendant owed you a legal duty of care, you’ll need to show that the defendant “breached” that duty by failing to behave with reasonable care.

    • Example of breach of duty: Jane runs through a red light while driving, which violates her duty to obey traffic laws and avoid putting others in danger.

If you can prove the two elements of negligence we’ve listed so far, then you’ve established liability and proven that the defendant is legally responsible for the consequences of their actions. Sometimes, the defendant even admits they breached the duty of care and accepts liability. But even when the defendant accepts liability, they and their attorney can still dispute the next two elements of negligence.

    • Element #3: Causation

      Once you prove the defendant violated their duty of care, you’ll need to show that their reckless actions led to the injuries or harm you’ve suffered. This connection between their actions and your injuries is called causation.

      Not all types of causation are created equal in the eyes of the law. The defendant’s negligent action can’t just be a loosely related cause of your injuries. Instead, the relationship needs to be what courts call a “proximate cause,” which is a fairly direct cause.

      So, if a drunk driver crashes into your vehicle and injures you, that’s a direct cause. But if the drunk driver instead hits the curb and scares a cat, the cat runs into traffic, and a second driver swerves to avoid the cat and hits you, you probably won’t have a valid personal injury claim against the drunk driver who hit the curb and scared the cat. Even though the drunk driver technically caused your injuries, the cause wasn’t direct.

      To prove causation, your lawyer may also need to hire additional expert witnesses, like doctors who can testify that your injuries resulted from the defendant’s actions and not from anything else.

      • Example of causation: When Jane runs through the red light, she causes a crash that leaves a victim, Sue, with severe injuries that include a broken hip and cracked ribs. Sue requires emergency surgery and months of follow-up medical treatment, leaving her with tens of thousands of dollars in medical bills and lost wages. Doctors testify that Sue was in good health before the crash and wouldn’t have needed treatment for the hip and rib injuries if the crash hadn’t happened.
  • Element #4: Damages

    Once you’ve proved that the defendant’s negligent actions caused your injuries, there’s one last step: you’ll need to show that the defendant’s actions caused you real harm and then translate that harm to an amount of money.

    This might sound simple, but it’s often the most complicated part of proving negligence. Your lawyer will need to not only show all the different types of harm you’ve suffered but also translate each type of harm into dollar amounts, which are called damages. The total damages in your case should represent all the monetary losses, pain, and suffering you’ve experienced because of your injuries.

    To prove damages, your lawyer will need to provide lots of evidence. Examples of evidence that can help prove damages are medical bills from your treatment, pay stubs to prove lost wages, and testimony from experts about how your injuries will affect your career and your ability to work.

    • Example of damages: Sue’s attorney uses medical bills and medical records as well as testimony from experts to show that the damages in Sue’s case equal $50,000.

Even if you understand how negligence works, proving all four elements in court isn’t easy. The insurance company and their legal team will do everything they can to undermine your claim and raise defenses against your arguments. If the other side can create doubt about any one of the four critical elements of negligence, you’ll lose your case. That’s why you should always work with an experienced personal injury lawyer when you’re trying to hold someone responsible for injuring you or someone you love.

Contributory Negligence vs. Comparative Negligence

So far, we’ve been talking about negligence as if only one person can be at fault for a car wreck or other accident. But in the real world, you might get into a crash that’s partially your fault and partially someone else’s fault.

As an example, let’s say you’re driving through a green light at an intersection when Mike, who was driving in the opposite direction, suddenly turns left and smashes into your vehicle. Mike should have yielded and had no right to make a turn while you were traveling through the intersection.

However, it turns out you weren’t paying attention to your speed at the time, and you were going 10 miles per hour over the posted speed limit as you were traveling through the intersection. Even though you weren’t speeding by a lot, your vehicle’s speed might have affected Mike’s actions and contributed to the crash. Maybe Mike assumed you were going the speed limit, misjudged your speed, and thought he had enough time to turn left.

In this situation, a jury might find that Mike was 80 percent at fault for the crash because he failed to yield and smashed into your vehicle. However, they might assign you the other 20 percent of the blame because you were speeding. So, how does this situation affect your right to compensation?

The answer depends on where the crash took place. Different states have different rules for how juries should assign compensation based on how much the plaintiff was at fault. All 50 states use one of two different rules: comparative negligence (which exists in two different versions) and pure contributory negligence.

  • Comparative Negligence

    If your injuries happened in a state that uses comparative negligence (also called comparative fault), then you still have a right to compensation even if you were partially at fault for causing your own injuries. However, you can only collect a percentage of the total damages that equals the percent that the defendant was at fault.

    If that sounds confusing, let’s go back to our example of Mike, the driver who turned left into your car when you had a green light. Since the jury found that Mike was 80 percent at fault, you’d be entitled to 80 percent of the total damages if you’re in a state that uses comparative negligence.

    Also, remember that there are two different versions of comparative negligence:

    • Pure comparative negligence: You can collect damages no matter how much you were at fault for causing your own injuries, as long as someone else was partially responsible. So, if you were 80 percent at fault but the defendant was 20 percent at fault, you could still collect 20 percent of the total damages.
    • States that use pure comparative negligence for personal injury claims and lawsuits: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, Washington
    • Modified comparative negligence: You can collect damages as long as you were less than 50 percent at fault (51 percent in some states). So, if you were 40 percent at fault but the defendant was 60 percent at fault, you could collect 60 percent of the total damages. However, if you were 60 percent at fault while the defendant was only 40 percent responsible, you would have no right to compensation.
    • States that use modified comparative negligence for personal injury claims and lawsuits: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, South Carolina, Tennessee, Utah, West Virginia
  • Pure Contributory Negligence

    Compared to comparative negligence, pure contributory negligence (also called pure contributory fault) is a very harsh rule that’s unfair to victims. In states that apply pure contributory negligence, you lose your right to compensation if you were in any way at fault for causing your injuries — even if the other person was 99 percent at fault and you were only 1 percent responsible.

    Contributory negligence only exists in the “pure” version. There is no “modified” version, like there is with comparative negligence.

    • States that use pure contributory negligence for personal injury claims and lawsuits: Alabama, Maryland, North Carolina, Virginia — Washington, DC also uses the pure contributory negligence rule but makes an exception for for motor vehicle accidents that involve pedestrians and bicycles

 RELATED BLOG ARTICLE: Why Contributory Negligence Matters for Your Personal Injury Case

Myers Law Firm: Fighting for Injured Victims of Negligence in and Around Charlotte

If you or someone you love suffered serious injuries in Mecklenburg County because of someone else’s negligent behavior, please contact Myers Law Firm right now. We’ll listen to your story and explain your legal options at no cost to you.

To schedule your free initial consultation with an experienced personal injury attorney from our team, please complete our quick and easy online contact form or call us at 888-376-2889.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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